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jganijiw  aif 


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A  TREATISE 


ON-THE 


LAW  OE  JUDGMENTS. 


INCLUDING  ALL  FINAL  DETEEMINATIONS  OF  THE  EIGHTS 

OF  PARTIES  IN  ACTIONS  OR  PROCEEDINGS 

AT  LAW  OR  IN  EQUITY. 


By  A.  C.  FEEEMA^, 

Counselor  at  Law. 


SECOND  EDITION,   IIE\T:SED  AND   GREATLY  ENLARGED. 


SAN  FRANCISCO: 

A.   L.   BANCROFT  AND   COMPANY, 

Law  Book  Publishees,  Boossellees  and  Stationev-s. 

1874. 


mi^ 


J 


Entered  according  to  Act  of  CongrcBS,  in  the  year  1873, 

Bx  A.  L.  BANCROFT  .t  COMPANY, 

In  the  office  of  the  Librarian,  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  187 i. 

By  a.  L.  BANCROFT  &  COMrANY, 

In  the  office  of  the  librarian  of  Congress,  at  WasJiiugtoa, 


PEEFAOE. 


The  autlior  of  this  book  believes  that  its  publication  is  amply 
justified  by  the  importance  of  the  subject  of  which  it  treats,  by 
the  frequency  with  which  a  correct  understanding  of  that  subject 
is  essential  to  a  proper  and  consistent  administration  of  the  law, 
and  by  the  absence  of  any  other  work  which  even  professes  to 
treat  of  the  matters  considered  in  this. 

A  judgment  is  not  invariably  "the  end  of  the  law."  Per- 
haps nothing  so  fairly  demonstrates  the  persistence  of  litigants 
as  their  constant  eftbrts  to  escape  the  consequences  of  prior 
defeats.  Scarcely  a  term  passes  in  any  of  the  courts  of  last 
resort,  in  this  country  or  in  England,  in  which  it  does  not  be- 
come necessary  to  determine  the  effect  of  some  prior  adjudica- 
tion. An  examination  of  the  reports  will  convince  an}*  one  that 
there  are  but  few  branches  of  the  law  which  have  been  more 
frequently  before  the  courts  than  the  Law  of  Judgments. 

Whoever,  for  the  first  time,  gives  his  special  attention  to  this 
branch  of  the  law,  will  be  less  surprised  at  the  number  of  the 
decisions,  than  at  the  assurance  with  which  the  most  irreconcil- 
able conclusions  have  been  announced.  Cases  have  frequently' 
been  disposed  of  in  accordance  with  principles  which  the  Court 
evidently  regarded  as  indisputable,  but  which,  in  fact,  were  in 
direct  conflict  with  the  law  as  understood  in  most  of  the  other 
States.  Nor  can  this  be  deemed  remarkable,  when  we  remem- 
ber that  no  attempt  had  been  made  to  collate  the  various  deci- 
sions constituting  the  Law  of  Judgments. 

This  work,  though  not  formally  subdivided  in  that  manner, 
consists  of  seven  parts:  Part  first,  including  chapters  one  to 
seven,  showg  of  what  the  Record  or  Judgment  Roll  is  composed, 
and  states  the  various  classifications  and  definitions  of  Judg- 
ments and  Decrees,  and  the  rules  applicable  to  Entries  and 
Amendments,  and  to  the  Vacation  of  Judgments  at  Common 
Law,  and  under  the  Code.  Part  second,  consisting  of  the  eighth 
chapter,  is  devoted  to  the  law  in  regard  to  Jurisdictional  In- 
quiries in  collateral  proceedings.     The  ninth  and  tenth  chapters 


«\V5'>^ 


iv  PREFACE. 

constitute  tlie  tliird  part,  and  are  designed  to  show  uhat  persons 
are  bound  by  the  judgment,  by  reason  of  their  privity  with  the 
parties  or  their  interest  in  the  subject  of  litigation,  or  through 
the  operation  of  the  law  of  lis  pendens.  Part  fourth  treats  of 
the  important  incidents  attending  judgments,  viz.:  Merger, 
Estoppel  and  Lien;  of  the  assignable  qualities  of  judgments, 
and  of  their  admissibility  as  evidence.  Part  fifth  considers  pro- 
ceedings to  revive  judgments  by  scire  facias,  and  to  enforce 
them  as  causes  of  action  or  defense,  with  the  rules  of  j)leading 
applicable  to  those  proceedings.  The  sixth  part  contains  the 
chapters  on  Relief,  Reversal  and  Satisfaction;  showing  for  what 
causes  a  judgment  may  be  avoided  in  equity — what  are  the  ef- 
fects of  its  reversal  by  some  appellate  tribunal— and  what  are 
the  means  and  circumstances  which  produce  its  satisfaction. 
The  seventh  and  last  part  treats  of  the  different  kinds  of  judg- 
ments, and  the  rules  peculiar  to  each. 

In  the  hope  that,  at  least  by  its  arrangement  and  citation  of 
authorities,  it  may  aid  in  the  proper  determination  of  cases  yet 
to  arise,  and  may,  by  producing  a  more  thorough  knowledge  of 
the  law,  assist  in  the  prevention  of  needless  litigation,  this  work 
is  respectfully  submitted  to  the  members  of  that  profession  for 
whose  benefit  it  was  prepared. 

Sacramento,  Cal.,  January,  1873. 


PREFxVOE  TO   SEOOI^D  EDITIOJN^ 


The  author  has  endeavored  to  merit  the  kindness  with  which 
the  first  edition  of  this  work  was  received,  by  making*  the  second 
as  complete  as  possible.  To  accomplish  this  result,  he  has  con- 
sulted a  large  number  of  authorities,  and  has  made  considerable 
additions  to  the  text.  Particular  pains  has  been  taken  to  em- 
body in  this  edition,  the  substance  of  the  decisions  published 
since  the  completion  of  the  work  as  it  w^as  first  given  to  the 
world.  The  prior  decisions  have  also  received  attention,  and 
have  repaid  it  by  contributing  materially  to  the  increase  both  of 
the  text  and  of  the  table  of  cases.  The  Canadian  reports,  which, 
until  recently,  were  not  within  the  authors  reach,  have  also  been 
examined,  and  have  been  cited  as  freely  as  those  of  the  other 
/American  courts.  From  these  various  sources  the  number  of 
the  citations  has  been  augmented  nearly  twenty-five  per  cent, 
and  it  is  hoped  and  believed  that  the  value  of  the  work  lias  been 
increased  in  a  like  ratio. 

Sacramento,  Cal.,  August  1,  1874. 


TABLE   OF   COI^TEISTTS. 


N.  B. — For  more  complete  statement  of  contents  see  the  Synopsis  at  the 

head  of  each  Chapter. 


CHAPTER  I.  p,o,. 

Definitions  and  Classifications  of  Judgments  and  De- 
crees—  Final  Judgments  within  the  meaning  of 
statutes  allowing  ajopeals 13-33 

CHAPTER  II. 

THE  ENTRY  OF  JUDGMENTS. 
Is  a  Ministerial  Act — Distinction  between  Judgments 

and  Decrees — Judgment    Book Joint   Parties — 

Form  —  Justices'  Courts 34-50 

CHAPTER  III. 

NUNC  PRO  TUNC  ENTRIES. 

Part  I.  "Where  no  Judgment  has  been  ordered  or 
entered.  Part  II.  "Where  Judgment  has  been  or- 
dered but  not  entered 51-G2 

CHAPTER  IV. 

AMENDING  JUDGMENTS,   63-70. 

CHAPTER  Y. 

THE  RECORD,  OR  JUDGMENT  ROLL. 

Origin  —  Verity  —  Of  what  composed — Absence  of — 

Replacing 71-83 

CHAPTER  VI. 

VACATING  JUDGMENTS. 
At  Common  Law — By  Writs  Error,  Coram  Nobis  and 

Coram  Vobis — Audita   Querela — Causes   for  Notice.     84-100 


Vlil  TABLE  OF  CONTEXTS. 

CHAPTEE  VII. 

Vacation  of  Judg-ments  under  statutes  on  account  of 
Mistake,  Inadvertence,  Surjirise,  or  Excusable  Neg- 
lect           101-111 

CHAPTEE  VIII. 

Inquiries  in  Collateral  Proceedings  in  relation  to  tbe 

Juj'isdictiou  of  Courts  of  Eecord 112-150 

CHAPTEE  IX. 

OP  THE  PERSONS  AFFECTED  T.Y   JUDGMENTS. 

Part  I.  Parties.     Part  II.  Privies.     Part  III.  Persons 

bound  thougb  neither  Parties  nor  Privies    ....  151-190 

V 

CHAPTEE  X. 

LIS  PENDENS. 

Eeasonsfor — Commencement  of — Property  bound  by — 

Persons  bound  by — Diligence  in  Prosecution  .     .     .  200-2'12 

CHAPTEE  XL 

MERGER. 

General  Principles  of — Exceptions — Joint  Obliga- 
tions— Indivisible  Causes  of  Action 223-22'l 

CHAPTEE  XII. 

JUDGME^lT   ESTOPPELS. 

Part  I.  Kature  and  Extent.  Part  II.  Eequisites.  Part 
III.  Evidence  to  establish  or  rebut.  Part  IV.  Mat- 
ters Defendant  need  not  litigate.  PartV.  Pleading. 
Part  VI.  Actions  in  conflict  with  Prior  Ad  j  udications. 
Part  VII.  Judgments  in  various  Actions,  Eeal  and 
Personal,  and  Criminal.  Part  VIII.  Motions  and 
Special  Proceedings.  Part  IX.  Miscellaneous  Mat- 
ters       225-358 

CHAPTEE  XIII. 

IMPEACHING  JUDGMENTS,  359-362. 


TABLE   OF   CONTENTS.  IX 

CHAPTER  XIV. 

OF   THE  JUDGMENT  LIEN. 

Part  I.  Nature  and  Crea'^ion  of.  Part  II.  Estates  and 
Interests  afiected  by.  Part  III.  Priority  of.  Part 
IV.  SusiDension  and  discharge  of.  Part  V.  Extend- 
ing and  Reviving.  Part  VI.  For  Future  Advances. 
Part  VII.  Of  Foreclosure  Suits.  Part  VIII.  Of 
Judgments  of  the  Federal  Courts 3G3-417 

CHAPTEE  XV. 

JUDGMENTS   AS   EVIDENCE. 

Part  I.    Mode  of  Proof.      Part  11.    Admissibility  and 

Effect 418-428 

CHAPTEE  XVI. 

ASSIGNMENT   OF  JUDGMENTS. 

Means  of — Notice  of — Rights  of  Assignee — Prior  As- 
signments   ■    .     .     .     .  429-437 

CHAPTEE  XVII. 

ACTIONS  ON  JUDGMENTS,  438-444. 

CHAPTEE  XVIII. 

PEOCEEDINGS  BY   SCIRE  FACIAS,  445—148, 

CHAPTEE  XIX. 

PLEADING. 

Part  I.  General  Form.  Part  II.  Averments  of  Juris- 
diction. Part  III.  Description.  Part  IV.  Pleas  in 
Defense.     PartV.  Pleasof  Judgments  of  other  States  449-459 

CHAPTEE  XX. 

SATISFACTION. 

Parti.  By  Payment.  Part  II.  Payer's  Right  to  Subro- 
gation. Part  III.  Satisfaction  by  Proceedings  under 
Execution.     Part  IV.  Proceedings  after  Satisfaction  4G0-482 


X  T.VBLE  OF   CONTENTS. 

CHAPTER  XXI. 

EEVERSED  JUDGMENTS,   483-490. 

CH.\PTEIl  XXII. 

HELIEF   IN  EQUITY. 
Grounds  for — Parties  who  may  Apply — Eights  of  Third 
Persons    491-528 

CHAPTER  XXIII. 

JUDGMENTS   OF   COURTS   NOT   OF   RECORD. 

Distinction  between,  and  Courts  of  Record — Jurisdic- 
tion must  be  shown — No  Presumptions  in  favor  of — 
Officers  acting  under  Authoiity  from 529-537 

CHAPTER  XXIV. 

JUDGMENTS  BY  DEFAULT. 
Effect  -Clerk's  Authority — Appeal  from — Opening,     ,  538-544 

CHAPTER  XXV. 

JUDGMENTS   BY  CONCESSION   WITHOUT   ACTION. 

Statutes — Parties  who  may  make — For  what  may  be 

made — Statements — When  void — Remedy  to  correct  545-554 

CHAPTER  XX^T:. 

JUDGMENTS   OF   OTHER   STATES. 
Constitutional   and    Legislative   Provisions — Jurisdic- 
tional Inquiries — Effect  of — Defenses  to — Decrees  of 
Divorce 555-579 

CHAPTER  XXVII. 

FOREIGN  JUDGMENTS. 
Jurisdiction — Effect — Appeal — Are  not  Records,     .     .  580-G02 

CHAPTER  XXVIII. 

JUDGMENTS  IN   REM. 
Definition — Differe'nt  Kinds — Jurisdiction — Divorce — 

Decrees  in  Admiralty G03-G17 


TAI3LE  OF  CASES. 

[N.  B. — THE   FIGUKES   EEFEK   TO   THE    SECTIONS.] 


A 

Aadie  v.-  Lobrero 212,  213 

Abbie  v.  IliggiuR 79 

Abbe  V.  Rood 403 

V.  ]Man" !j33 

Abbott  V.  Bradstreet .  319a 

Abbott  V.  Douglas 83 

Abbott  V.  Button 95 

Abbott  V.  Ilackman 73 

Abordocn  r.  Blackmcr 1S4 

Abiugton  v.  Lipscomb 57 

Acker  ';.  Acker 553 

Ackcrly  v.  Parkinson 531 

Ackier  v.  Ackler G3 

Acklsj'  V.  Cliamberlaiu 3"5 

Acorn,  The 3Ji 

Adams  v.  Barnes 1G5,  283,  2S4 

ij.  Bi'oughton 237 

V.  Butts 172 

u.  Do  Cook GOB 

V.  D3'cr 371 

•       u.  Haffard 243 

V.  Hickman 541 

V.  Jeffries 123 

V  .Oaks 533 

V.  Pearson 3 10 

r.  Smith 478 

Adkinson  v.  Keel 89 

Aduey  v.  Vernon 218 

Agnew  V.  McElroy 2G0,  27G 

Agry  V .  Betts  523 

Aieardi  v.  Eobbius.' 4G3 

Aikins  v.  Bailey 180 

Akcily  V.  Vilas 325 

Albin  V.  People 432,  41G 

Albro  V.  Dayton 503 

Aldeu  V.  Alameda  Co 432rt 

Alexander  v.  Stewart 72 

Allen  V.  Bradford G 1 

11.  Carter..... 159 

V.  Cass   195 

r.  Dundas COS 

V.  Holden 4G9 

V.  Irwin  103 

V.  Lyman 217 

V.  Macl-llan 99 

V.  MmdLiville 195 

V.  Jlorris 201 

V.  The  Mayor 328 


Allen  V.  Stephanes 501 

V.  Stone 498 

AUie  V.  Schmitz 308 

Allinet  v.  His  Creditors 261 

Altman  v.  Klingensmitb 4C6 

Am.  Lis.  Co.  V.  Oakley 12S,  498 

Ames  u.  Hoy 407,  432 

Amsdcn  v.  D.  S.  &  C.  B.  U.  Co.. 273 

Auacosta  Tribo  v.  Murbach 531 

Anderson  i'.  Fish 83 

V.  Kimbrough 55 

V.  Little 464 

V.  Eyder 155 

t;.  Tuck 369 

Andover  Sav.  Bank  v.  Adams 238 

Andrews  v.  Montgomery  . . .  461,  559 

V.  Smith 216 

i;.  State 117 

r.  Vartrell 216,224 

Angell  V.  Draper 512 

r.  Bobbins 523 

Archer  v.  Masse 60S 

Argenti  v.  San  Francisco 481 

Arget  V.  Blackshear 529 

Armory  v .  Armory 575 

Armroyd  v.  "Williams 613 

Armstrong  i'.  Barton 135a 

V.  Prewett 235 

Arndt  v.  Arndt 573 

Arnold  r.  Al  .inor 2S1 

t).  Arnold 293,  311 

u.  Fuller 478 

V.  Frazicr 413 

V.  Grimes 281 

•U.Kelly 90 

r.  Nye 124,  128 

Arnott  ti.  Webb 5G3 

Arrington  r.  Comey 72 

r.  Sherry 558 

V.  Washington 501 

Arthur  v.  Mosby 139 

Ashby  V.  Glascow 96 

Ashley  v.  Hyde 90 

V.  Laird 453 

Aspden  v .  Nixon 252 

Aspinwall  i\  Pirnie  , 354 

Assignees  i\  Dorsey 101 

Astlcy  V.  Eeynolds 57 

Atkins  V.  Horde 295 

V .  Hudson 458 


xu 


TABLE   OF   CASES. 


Atkinson  r.  Allen 33G 

Atfy  Gcnl.  v.  Lord  Hutham 525 

Audubon  v.  Excelsior  Ins.  Co  . . .  .205 

Ault  V.  Gassawaj' 212 

u.Zebcring 217,  221 

Aultmau  r.  McLean 128  &  lo'J 

Aurora  Citj-  v.  West  . .  .247,  IG7,  4G0 

Austin  V.  Nelson. ...    112 

Auwerter  v.  Mathiot 318,  3G3 

Averill  v.  Loucks 229,  232 

Avery  v.  Fitch 233 

Ayres  v.  Carver 31 

V.  Dnprey 3GG,  3GGa 

B. 

B.  &  W.  11.  R.  Co.  v.  Sparhawk.  .135 

Babcock  v.  Brown 112 

i\  McNamant 490 

V.  Campbell 2.>i 

Baber  v.  Cook 43 

Backus  V.  Clark 80 

Bacon  r.  Kimmell 237 

Badger  v.  Biidger 270.  ( 

V.  Titcomb 2i0,  274 

Ba.qley  v.  Ward 34 G,  394 

Bagot  r.  Williams 27(; 

Baily  v.  Brownficld 470 

Bailay  v.  Clayton 512 

V.  Ins.  Co Gi8 

V.  Taaffe. . .  .lOG,  108.  115,  541 

Bain  v.  Hunt 451 

Baker  v.  Cleveland 272 

V.  Morgan 487 

V.  Morton 357 

V.  Piorson 213 

V.  Preston 180 

V.  Hand -.209,272,  515 

V.  Stinchfield 279 

c.  State     4G 

V.   Btonebrader's  Adm'r..l2S, 

4G5 

Btdd-^vin  v.  Calkins 145 

V.  Kimmel 133 

V.  Kramer 93 

Ballinger  v.  Tarbell 12G 

Ballon  V.  Hudson COS 

Bait.  &  O.  E.  R.  V.  Fitzpatrick. .  4n2 

Baltzell  V.  Noster 503 

V.      Randolph 505 

Bancroft  v.  Wiuspear 210 

Band  v.  Rice 22G 

Bank's  Appeal 515 

IBank  The  v.  Beale 477 

V.  Flagg 303 

V.  Harrison 109 

V.   Moss 71,101 

V.  Rogers 475 

V.  Seymour 70 

V.  Thompson 313 

V.  Wheeler 57G 

r.  Wills     3J2 

V.  Wistar 71 

Bank  of  Australasia  i'.  Harding  . .  220 

590,  594 


Bank  of  Australasia  v.  Nias. .  177,  590 

594 

Bank  of  Chenango  v.  Hyde 229 

Bank  of  Commonwealth  v.  Hopkins 

2G2 

Bank  of  Kiuderhook  v.  GifTord   .  .542 

V.  Jeuison    .553 

Bank  of  N.  A.  v.  Wheelcr.221,  224,  328 

Bank  of  Oswego  r.  Babcock 188 

Bank  of  Pcnn.  v.  Winger 478 

Bank  of  U.  S.  v.  Beverly 248 

V.  Patton.    ...216,  380 

V.Winston 339 

Bank  of  Va.  v.  Bank  of  Cbillicothe 

79 

Banks  v.  Evans 480 

Banta  v.  McClennan 475 

r.  Wood 436 

Baragee  v.  Croukite 516 

Barber  v  Kennedy 520 

V.  Winslow 517 

t?.  Root    579 

Barefield  v.  Bryan 139 


Bardv.  Fort 


342 


Barelli  v .  Delassus 193 

Baring r.  Clagctt CIS 

Barker  v.  Brahan 1C4& 

V.  Cleveland 254,  312 

u.  Elkius 504 

V.  Simi^son 507 

Barkhurst  v.  Yelverton . . .  1G3 

Barkmau  v.  Ilojikins 576,  507 

Baruaby's  Case 379 

Barnard  v.  G.bson 34,  35 

Barnes  v.  Gibbs 221 

V.  Harris .   454 

Barnett  u.  Juday 227a 

Barney  v.  Chittenden 3C8 

V.  Dewey 186 

V.  Patterson 578 

V.  White 575 

Barr  v.  Gratz 416 

Barrett  v.  Garragan 55 

u.  Thompson 475 

Barringer  v.  Boyd 456 

V.  Boyden 470 

Barry  v.  Carotbers 154 

V.  Pat  erson 123 

Barthcll  v.  Roderick 500a 

Bartholomew  v.  Candee 284 

Bartlett  v.  Knight 559,  596 

V.  Yates 422 

Bartley  v.  Hodges 599 

Barton  r.  Albright 107 

LJarwell  v.  Knight 249 

Bascom  v.  Feazler 32G 

Batchelder  v.  Currier 529 

V.  MOore 137 

Bateman  ij.  Willoe 485 

Bates  V.  Delevan. . .    39 

V.  Gage   121 

V.  Hinsdale 370 

V.  Quattlebone 211 

V.  Delevan   573 

V.  N>.  0.  &  J.  R.  R.  Co  ....5G8 


TABLE   OF   CASES. 


Xlll 


Bates  V.  Stanton IGG 

Banduc'ii  Syndics  v.  Nicholson..  .Gil 

BiiiT-jh  V .  Bangh   251,  57.) 

Baxter  v.  Dear 150,  303,  4S5 

V.  Ins.  Co G15,  Cl« 

V.  Siuali 571 

Bayley-u.  Bucklaml 499 

V.  Cockerill 193 

Baylor  v.  Dcgaruette 172 

Beach  v.  Vandenburgh 4G9 

Beal  V.  Smith 4G1 

Beallu.  Beck 180 

V.  Pcarce 272,  2.S4 

Beard  v.  Kelclu;m 95 

Beausoliel  v.  Brown 319 

Boavon  v.  Countess  Oxford   .347,  3GG 

Boazley  v.  Prentiss 474 

Beckman  v,  Selover . 1C3 

Beebe  v.  Bank  of  N.  Y 428 

V.  Elliott 299 

Beech  v.  Abbott 12G 

Beekman  v.  Peck 100 

•     Beers  v .  Haughton  404 

V.  Henderson 4G3 

Beeson  v.  Conlej' 257 

Beirne  i\  Mower 394 

Bell  V.  Evans ,,.„„,  3GG 

V.  Hoaglaud 2G0 

V.  Mossey 45 

V.  llaymond 524 

V.  State 324 

v'.  Thompson 93 

V.  "Williams 495,  49S 

Bellamy  v.  Sabine 191,  192,  200 

BclUnger  v.  Craigue 250,  372 

Bellows  V .  Shannon  7 

Belmont  v,  Coleman 177 

V.  ErioE.  K.  Co 325 

V.  Ponvert 14 

Beloit  V .  Morgan 253 

Beltr.  Davis IG,  18 

Beltzhoover  v.  Commonwealth.  .  .235 

Bender  v.  Fromberger 18G 

Bendcrnagle  v.  Cocks 240 

Benedict  i\  Smith 4G3 

Benjamin  v.  Elmira  K.  B.  Co 15G 

V.  Wilson 32G 

Bennett,  Ex  parte 118 

Bennet  v.  Couchman 1G9 

V.  Hamill 151,  513 

r.  Hethington 171a 

V.  Holmes 27G 

V.  Hood 241 

V.  IMnsgrave 512 

V.  Bankings 100 

Bennett's  Lessee  v.  Williams 195 

Bensley  v.  Mountain  Lake  Co 213 

Benson  v.  Paine 229,  231 

V.  Vernon 100 

Bentley  v.  Jones 15,  20 

Benton  r.  Dufiy 2G9 

Benwell  v.  Black .  .433 

Benz  V.  Hines 156,  252 

Berger  v.  WiUiams 180,  459 

Bernal  v.  Lynch 524 


Bernard  v.  Douglas 55G,  55S 

Bernard  v.  Hobok(  n ...  256 

Bernardi  v.  Matteanx G18 

Berry  v.  Clements 370 

V.  Shuler 376 

V.  Whittaker 193 

Berlline  v.  Bauer 113 

Bert  V.  Sternberg 310 

Bertrand  v.  Gugy 70 

Betts  V.  Baglcy 245,  523 

V.  New  Hartford 319 

V.  Starr 253 

Betty's  Lease 324 

Bibb  t'.  Avery G04 

Bibend  v.  Kreutz    497 

Biddle's  appeal 337«. 

Biddio  V.  Wilkins.  .217,  435,  450,  452 

Biddlcson  V.  Whitel 215 

Bidwcll  V.  Coleman 347 

Bigelow  V.  Wiusor 239,  252,  254 

Billing  V.  Hitchings 456 

Billings  .'.  Eussell   122,  520 

Bimeler  v.  Dawson 560,  565 

Birch  V.  Funk 2G0,  267 

Birckhead  v.  Brown 259 

Bird  V.  Smith 435 

Birdwcll  L\  Cain 394 

Bischoff  V.  Wcthered 588 

Bishop  of  Winchester  v.  Beaver.  .205 

V.  Paine  . .  .191 

204 

Bishop's  Heirs  v.  Hampton 89a 

Bisland  v.  Hewett 3Gla 

Bissell  V.  Briggs 596,  458,  5G2 

Bissell  V.  Jandon 464 

V.  Wheelock 453 

Bixby  V.  Whitney 320 

Black  V.  Nettle 216 

Black  &  Whitesmith's  Society  v.  Van 

Dyke    531 

Blackburne  v.  Squib 4G4 

V.  State 148 

V.  Stupart 476 

Blackleach  v.  Stewart C18 

Black  PJv.  Sav.  Bank  v.  Edwards  253 

Blaikcl  V.  Griswold 5 

Blair,  ]Cx  -parte 324 

V.  Caldwell 412,  439,  459 

Blair  v.  Chamblin 349 

Blake  v.  Burley 450 

i\  Douglas 151 

Blakely  v.  Calder 135,  305 

Blakemoro  v.  Canal  Co 160 

Blakesley  v.  Johnson 427,  492 

Blakey  v.  Newby , 156 

Blauck  V.  Speckman 487 

Blanford  v.  Foote 245 

Blann  v.  Crocheron 236 

Blini).  Campbell  „.2G4 

Bliss  V.  Clark 355 

Blodgett  V.  Jordan 284,  433,  575 

Blood  r.  Bates 139 

i\  Crandall : 155 

V.  Sayre 530 

Bloodgood  V.  Garsey 1G2,  253 


XIV 


TABLE   OF   CASES. 


Bloom  V.  BnrcHck 133 

Bloss  r .  riymale   230 

Blnnifiekrs  Case 171 

Bluzzard  v.  Phoebus   I'J 

Blystone  v.  Blystoue 1.  4S9 

Blvtbo  c.  llichartls   132 

Board  of  S.  i'.  M.  P.  E.  R.  Co.,  157, 

257,  303,  31  (J 

I'.  De  Forest -107 

Boardman  v.  Acer 4G4 

Bogart,  In  re  531 

Boggs  V.  Clark 327 

Boiieau  r.  Bnller 331 

Boker  v.  Dronsou 37 

Bolan  V.  Bolan 407 

Bolen  V.  Crosby 431 

Bolgiano  v.  Cook 135 

Bollon  V.  McKinaley 00 

Bombay  v.  Boyer 393 

Bonafour  r.  \\  alker 217 

Bond  V.  McNidor 2G1 


r.  Pac-bcco 


,  129, 


)4 


Bouuell  V.  Bonnell 558 

V.  lleiiry 553 

Bonnestecl  v.  'J'odd 219,  220,  233 

Bonta  V.  Clay  557 

Bonvillian  v.  Bourg 271 

Bordeu  v.  Fitch 133,  559,  562 

•Booker's  Adm'r  v.  Boll's 417 

Boou  I).  Boon 72 

t>.  Miller 500a 

Booth  V.  V.  &  M.  Bank 42Ga 

Borst  t'.  Baldwin 432 

BoiTowscalc  i'.  Tuttle 270 

Boston  V.  Ilaynes   486,  G08 

V.  Worthingtou ISl 

Boswell  V.  Dickersou 142 

Bouchard  v.  Dias.  .253,  25G,  2G7,  330 

Bouldcn  V.  Lanahan 193 

Boulette  r.  Owens 54G 

Bouuker  v.  Atkyns 170 

Boutd  V.  Owens  5 IG 

Bowen  v.  Bonner 445 

V.  ]\Iay 44 

Bowman  r.  Ilovious 3S5 

Boyd  V.  Bhiisdell 72 

V.  Boyliam 155 

V.  Caldwell 180 

V.  Chesapeake 487 

V.  Whitfield 181 

Bovland  V.  Boyland 127 

Boynton  v.  Wiilard 173 

Brackett  v.  Iloitt 2G0 

Bradford  v.  Ih-adford. .  .159,  271,  330 

Bradish  i:.  Geo 500 

Bradley  i'.  Spencer 180 

Bradshavr  v.  Heath 5G4 

Bradshaw's  Case S9 

Bradslr<-'it  v.  Ins.  Co .015 

Brady  ?\  Mnrphy 458 

V.  Beynolds 231 

V.  Spruck 228 

Brainard  v.  Cooper 1G2 

Braithwaite  v.  Watts 343 

Braly  V.  Seaman 83 


Brandling  v.  Plummer 343 

Brandon  v.  Diggs 94 

Branger  v.  Chevalier 72 

Brazier  v.  Bmning 237 

BiaziU  r.  Isham 320 

iJroadiug  v.  Siegworlh 1G7 

Bredon  v .  Gillilaud   90 

r>recdlove  i'.  Turner 189 

Ih-entnall  v.  Foster 231 

Brevard  ?■.  Hoflfmanu 531 

Brewer  v.  Jones 500a 

V.  Thomes 464 

Brewster  v.  M.  C.  R.  K.  Co 5G3 

Bridendolph  v.  Zeller's  Adni'r 94 

Bridge  v.  Sumner 2G1 

Bridgeport  Insurance  Co.  v.  Wilson 

1^4,  S3G 
Bridgeport  Savings  Bank  v,  Eidredge 

495 

Bridges  v.  Smyth 58 

Briggs  V.  Brewster 322 

V.  Dorr 422 

V.  Pdchmond 280 

r.  Vvclls 275 

Brightman  v.  Brightman 196 

Brinsmead  v.  Harrison 230-37 

Brintnall  v.  Foster 235 

Briscoe  v.  Stephens 218,  524 

Brittain  r .  Kinuaird 523 

Brittau  v.  Fisher 7 

r.  Turner 277 

V.  Wilder .\  .  ,515 

Broaddus  v.  Broaddus 492 

Brockway  v.  Kinney 272 

Brodie  v.  Beckley 1G3 

Bronson  v.  E.  R.  Co 27,  36 

V.  Eodes 3 

Brooking  r.  Dearmond   ]  56 

Brooks  V.  Gibbons 157 

V.  Hunt 95 

Broome  v.  Woottun 23G,  237 

Brown  v.  Ayres 426 

u.  Birdsall 234 

V.  Clarke  21G,  231 

i;.  Dudley 167 

ti.  Hathaway  409 

I?.  King 273 

V.  Joy  95 

•u.  KondaU 476 

V.  Neale 445 

V.  Nichols 128 

V.  Pierce 357 

V.  Richardson 43 

V.  Saratoga  R.  E.  Co 80 

V.  Scott 432 

V.  Simpson 418 

V.  Swan   507 

V.  Thornton 489 

V.  Union  Ins.  Co G13 

V.  Wheeler 58 

t).  White 472 

V.  Williams 3Glo 

V.  Wyucoop 501 

Brownlield  r .  Dyer 127 

V.  Mackey 348 


TABLE   OF   CASES. 


XV 


Brace  v.  Vogel 370,  374 

Bruc'U  V.  Hoiio -7:2 

Bruuiley  v.  State 1-1 

Brumleil  v.  Viuix  i>7o 

Brush  r.  TowUr l';2 

V.  Uobbius 70 

Bryaut  v.  Johnson '.5 

V.  Owcu   ISO 

V.  Wilhams ...   509 

Bryan  v.  Miller 555,  537 

Bryaus  v.  State 318 

Buchan  t'.  Sumner 313 

Buchanan  v.  Nolin 5112 

r.  Tort 4G1,  5.59 

V.  Kucker 5S8 

U.Smith 337« 

Buck  V.  Buck 320 

r.  Havens..... 109 

Buckingham  v.  Davis 140 

Buckliuc;  r.  Hannah 410 

Buckland  v.  Johnson 237,  241 

Buckner  v.  Calcote 253 

Budd  &  Co.'s  Appeal 347 

Buffington  r.  Cook  1 58 

Buffum  V.  Bamsdell 130 

Buford  r.  Kirkpatrick 570 

Bull  V.  Hopkins 2C8 

Bumj)  V.  Piercy 515 

Bunnell  v.  Pinto 239,  310 

Bunting's  Case 010 

Burch  V.  Newberry 90 

Burch  V.  Scott G9,  489 

Burdctt  V.  Abbott 137 

Burdick  v.  i^ost 2/1 

Burgess  t<.  Cane 42 1 

r.  Lane 159 

Burgh  V.  Francis 357 

Burk  V.  Table  Mountain  Co 2 

Burk  V.  Johnson 121 

Builen  V.  Shannon 159,  257,  27G 

Burling  v.  Goodman 3 

Burn  V.  Butcher 588,  Gil 

Burnett  v.  Cadwell 218 

r.  The  State G3,  G7 

V.  Smith  272 

Burney  v.  Blodgett 374 

V.  Boyett..    72,  370 

Burns,  Ih  re 337rt 

Burns  v.  Belknap 559 

Burns  v.  Simpson 4,  432,  452 

Burnham  v.  Stevens 53G 

V 5S8,  51)0 

Burson  r .  Blair 70 

Burt  r.  Casey 4G4 

Burt  V.  Scranton 540 

V.  Steruburgh   284 

Burton  v.  Burton 328 

V.  Hynson 501,  508 

V.  Smith 339 

V.  Wiley 503,  5li8 

Burwell  r  Knight 272 

Bush  V.  Lindsay 124 

Bushell's  Case 530 

Butcher  r .  Bank ...  1 124,  452 

Buttrick  v.  Allen 596 


Butler  V.  Horwitz 3 

V.  Knight 4G3 

V.  Leo   39 

V.  Miller 2J9 

V.  Mitchell 110,  113 

V.  Potter 5;]0 

V.  Tomlinson 195 

Buttrick  v.  Allen 414,  592,  COS 

Byei'S  V.  Engles 366 

V.  Fowler 405 

V.  Neal 329 

V.  Van  Deusen 321 

Byrne  v .  Frerc 270a 

V.  Prather 329 

0. 

CM.  Ins.  Co.  V.  Clover 136 

Cabot  t' .  Washington 356 

Cadmus  v.  Jackson 135 

Cagger  v.  Gardiner .   102 

Cahoon  v.  Speed 530 

CaiUeteair  v.  Ingouf 135 

Cake's  Appeal         „.   ...373 

Calderwood  v.  Tevis 193 

Caldwell  v.  Pticharcls 452 

V.  Walters 150 

Calhoun  v.  Dunning 173 

i;.  Ins.  Co .G15 

V.  Jester 348 

V.  Snyder 367 

Calkins  v.  Parker 124 

Callahan  v.  Griswold 334 

Callan  c.  May 36 

Callen  v.  Ellison   131 

Camp  V.  Baker   445 

U.Bennett 94 

w.Moscley 529 

Campbell,  Jure 337a 

Campbell  v.  Briggs 507 

V.  Bristol 409 

V.  Butts 275 

V.  Consalus 275,  257 

r.IIall 299 

t'.  Hays 126 

V.  Home  Insurance  Co. 575 

V.  Howard 433 

V.  Mavhugh.      ...    ....330 

V.  McCahan 117 

V.  Mesier 57 

V.  Phelps 237,  203 

V.  Steele 218 

V.  Watson 172 

U.Webb    529 

Canal  Co.  v.  Walker 545 

Candee  v.  Clark 232 

Canfield  v.  Miller 478 

Cannan  v.  Bcynolds 99 

Cannon  v.  Brame 259,  575 

Cape  Sable  Co.  v.  Case 506 

Caperton  v.  Schmidt   , .  .249,  257,  299 

Cai>in  V.  Inhabitants 96 

Capliug  V.  Herman .  .414 

Carkhuff  v.  Anderson 348 

Carleton  v.  Beckford 5G3 


XVI 


T.y^LE   OF   CASES. 


Carneal  v.  "Wilson 435,  48'J 

Carothers  v.  Hartsfield 407 

Carpenter  v.  King 226 

r.  Pier    187 

V.  Pike 577 

V.  Sheklou 241 

r.  Stilwell 409,480 

V.  Thornton 437 

'  Carpentier  v.  Oakland 128,  132 

Carr  v.  Anderson 48 

V.  Towusend 153 

r.  A" eld 475 

V.  Woodliif 273 

Carringtou  v.  Holabird 489 

V.  Holly 270a 

CaiToll  V.  Watkins 403 

Carson  v.  Moore „ 444 

Carter  v.  Carriger 140 

V.  Coleman 433 

V.  Clark 327 

V.  James 331 

V.  Miller.,.,... 195 

V.  Torrance 100 

Case  V.  Pibelin 153 

V.  State 148 

Casement  v.  Piinggold 40 

Casey  v.  Gregory 502 

Casler  v.  Shipmau 311 

Cassell  V.  Scott 487 

Castelo  V.  Bishop 108 

Castle  V.  Noyes 179,  253,  299 

Castrique  v.  Imrie 594,  595 

Castro  V.  lilies 342 

Castro  V.  Richardson 319a 

Cathcart  v.  Commonwealth 79 

Cathron  v.  Eade 360 

Catlin  V.  Latson 43 

V.  Robinson 363 

Cattlin  V.  Kernot 476 

Caujolle  V.  Ferie 319a 

Cave  v.  Davis 501 

Cavender  v.  Smith 348 

Central  Bank  v.  Veasey 450 

Center  v.  P.  &  M.  Bank 198 

City  of  Boston  v.  Worthington. .  .181 

City  of  Chicago  v.  PtobJ^ins 181 

City  of  Olnoy  r.  Boyd.^ 98 

City  of  Portland  v.  Richardson. .  .181 

Chaco  V.  Vasquez 34 

Chamberlain  v.  Carlisle 284 

V.  Gaillard 273 

V.  Preble 187 

Chambers  v.  Clearwater 140 

V.  Dallars 311 

V.  Hodges    71,  146 

,  V.  Ncal 95 

V.  Bobbins 492 

Chandon  v  Maghee 195 

Chapin  v.  Broder  .  .102,  345,  393,  401 
V.  Thomj-json.  543,547,553,557 

Chairman  v.  Coates 360 

V.  Cowles 403 

V.  Ilatt 477 

V.  Smith 275 

V.  State 137 


Chapman  v.  West. . ...^ . , 201 

Chappel  V.  Chappel 553,  558 

Charles,  Ex  parte 425 

V.  Haskin 235 

Charman  v.  Charman 101 

Chase  v.  Cheney 531 

V.  Christiauson 135 

V.  Gilman 44 

V.  Manhardt 5G0a 

V.  Searles ]  94 

V.  Swain 154 

Cheang-Kee  v.  U.  S 3 

Cheeseman  v.  Thorne 30t'« 

Cheever  i\  Wilson 5S5 

Chemung  Bank  v.  Judson 133 

Cheriot  v.  Fonssat  014 

Cherry  i\  Speight 575 

Chesapeake  v.  Swam , 3 

Chester  v.  Apperson 500 

Chester  v.  Miller 120, 491 

Chew  V.  Brumagin 575 

Child  V.  Powder  Works 221 

Childress  v.  Maun  &  Co 538 

Childs  V.  Bisk 78 

Chinn  v.  Hamilton 240 

Chipman  v.  Bowman 514,  533 

?•.  Martin 229 

Chirac  v.  Reinecker 109 

Chittenden  v.  M.  E.  Church 28 

Chitty  V.  Glenn 210 

Choteau  v.  Nickolls 403 

V.  Rice 28 

Choynski  v.  Cohen 538 

Chrismau  r.  Melne  79 

Christian  v.  O'Neal 126 

Christie  v.  Hale 374 

Christmas  v.  Russell 502,  575 

Christy's  Adm'r  v.  Myers 79 

Christj'  V.  Sherman 545 

V.  Tancred 160 

Church  V.  Barker ISO 

V.  Chapin 418 

•u.Hubbart 414 

V.  Leavenworth 272 

r'.WitheroU 531 

Churchill  v.  Churchil 529 

V.  Morse 357 

Claason's  Appeal 370 

Clapp  V.  Bromagham 304 

V.  Thomas 261 

Clark  V.  Bowling 244 

V.  Clement 477 

V.  Dunham 23,  152 

V.  Gibson 78 

r.  Hall 46,70 

V.  Holmes 517 

V.  Lamb 63,72 

V.  McComman 91 

V.  Moss 422 

V.  Sammons 256 

V.  Thompson 125 

V.  Wolf 178 

Matter  of 126 

Clarksou  v.  Morgan 199, 200, 

201,  202,  204 


TABLE  OF   CASES. 


XYll 


Clary  v.  Marshall 205 

Clay  V.  Cupcrtou 5_9 

V.Clay 283 

v.Fry 501 

Clearwater  v.  jMeredith 207 

Cleaton  v.  Cbambliss 2^4 

Clogi,'  V.  Dearden 241,  242,  259 

Clemens  v.  Clemens. . .  .249,  273,  30o 

Clement  v.  English 47G 

Clements  r.  Berry    403 

V.  Gerow 553,  554,  5J5 

Clemmer  v.  Cooker 575 

Cleveland  v.  Bocrum 208 

Clovinger  r.  Hill 195 

Clonts  V.  Kitch 342 

Close  r.  Stuarc 481 

Cloud  V.  El  Dorado  Co 135 

Clubine  v.  McMullen 154,  294 

Coates  V.  Coates 17 

Cobb  V.  Curtiss 292 

Coburn  v.  J 'aimer 47G 

Cocks  u.  Brewer 430 

Coeu  V.  Frink 322 

Coffee  V.  Neely 57G 

t).Tevis 472 

Coffin  D.Cottle 14G 

V.  McCallough's  Adm'r. . .  .487 

Coglan  V.  Elden 7 1 

Cohen,  Ex  parte 137 

Coit  V.  Haven 131,  132 

V.  Tracy 271 

Colden  t'.  Knickerbocker 538 

Cole  V.  Butler 12G 

V.  Driskell 79 

V.  Leak 319a 

V.  Pennell 43 

Collman's  Appeal 274 

Coleman  v.  McAnnulty 103, 

140,  153 

Coles  V.  Carter 458 

Collins  V.  Bennett 25G,  279 

V.  Brook 4G2 

t) .  Loft-is 173 

V.  Mitchell         ..140,  153, 17G 

Collinsou  V.  Owens 163 

Coltou  V.  Boss 608 

Combs  V  Tai'lton's  Adm'r 163 

Comeggs  V.  Yasse 425 

Commercial  Bank  v.  Martin 117 

V.  Wilson 136 

Commissioners  i\  Inspection  . . .  .233 

Commonwealth  v.  Blood  .  . .  .565,  587 

V.  Dieffeubach.  .  .193 

V.  German  Society 

531 

V.  Haas 226 

i\  Jackson 31S 

V.  Merrigan 216 

r.  Miller's  Adm'r. 226 

V.  Mortimer    ...  .269 

V.  Pike  Ben.  Society 

531 

Comstock  V.  Crawford 524 

Cone  V.  Cotton 123 

Conk  V .  L'  -wthcr 45 

2 


Conkliu  V.  Furman 177 

Conn.  r.  Penn 270a 

Couuell  V.  Stelson 495 

Conrad  u.  Ins.  Co 338,  378,  405 

Converse  v.  McArthur 146 

Couw\ay  v.  Ellison 576 

Cook  V.  Allen 307 

r .  Armstrong 216 

V.  Cook   241 

V.  Darling  .    .      132 

V.  Dickerson .87 

U.Dillon 319,  374 

V.  Mesely 277 

V.  Thornhill 575 

V.  Wood 96 

Cooley  V.  Brayton 193,  332 

Coolidge  V.  Inglee 79 

Cooper  V.  Bigelow 379 

i\  lleynolds 119 

Cope  V.  Humi^hries    464 

Copenheaver  i'.  Huffaker    .....  . .  193 

Copp  V.  McDugall 417 

Corbet  V.  Evans 286 

Cord  V.  Southwell 80 

Cordier  v.  Schloss 549,  553,  557 

Corey  v.  White 227,  471 

Corl  r.  Piiggs 266 

Cornell  v.  Barnes 529 

V.  Davis. 80 

Corwin  v.  Benham 403 

V.  Freeland 80 

t;.  Merritt 133,517 

Corwithe  v.  Griffiug  489 

Coster's  Ex.  v.  Bank  of  Geo 357 

Coster  IK  Peters 484 

Cottle's  Appeal 117,  470 

Countryman  ti.  Boyer 426 

Covell  V.  Covell 314 

Cowan  V,  Braidwood 455,  589 

Cowen  V.  Toole 489 

Cowart  V.  "Williams 168 

Cowper  V.  Andrews 293 

Cos  V.  B'dgcr  270 

V.  Thomas  .  . .  .124,  132,  ISO,  417 

Cox's  Admr.  v.  Hill 158 

Cracraft  v.  Cochran 241 

Crafts  u.  Clark 571 

Crafts  V.  Dexter 132 

r.  Merrill 446,447,  480 

V.  Wilkinson 466 

Craig  i\  Brown 412 

V.  Steamer  Hartford 27 

Craighead  v.  Wilson  34 

Crake  v.  Crake 453 

Crandall  r.  Bacon 497,  526 

V.  Beach ;  43 

Crane  v.  Brigham 177 

V.  Meginuis 586 

Crank  v.  Flowers 4f-9 

Crary  r.  Ashley 78 

Crawford  v.  Points 34 

V.  Satchwell 154 

V.  Simonton.  .277,  435,  439, 

576 
■U.White 498 


XVIU 


TABLE   OF   CASES. 


Crawford  v .  'Whittall      -150 

Crcusbaw  t;.  Creek 13G 

Creppeu  r .  Dexter 319« 

Crisp,  Ex  iHiiie 3Jl 

Critchli.  Id  r.  Porter 499,  511 

Crocker  v   Clements 482 

Crockett  v.  Koutou .250 

Crome  v.  Van  Nortwick 79 

Cromwell  v.  Eauk  of  Pittsburgh  .  .86 

V.  Craft 3u.3 

Crooker  v.  Crocker ]'.  3 

Cropsey  v.  Puxudall 403 

Crosby  v.  Jeroloman '232,  23S 

Crosby  v.  Leug 33G 

Cross  V.  ZauG 478 

Crouch  V.  Gridley 425 

Croudson  v.  Leonard. .  .249,  613,  015 

Crouse  v.  Derbyshire 514 

V.  Miller '2G8 

Culiieppcr  r.  Austin 191 

Culver  V.  Piogcrs 402 

Cummiug'.s  Ajipeal , . .  395 

Cuminings  v.  Lanks  ...,,,. 597 

V.  Bennett 270a 

V.  Calgrove 27G 

Cunningham  v.  A  shley lG3a 

V.  Caldwell 485 

V.  Harris 241 

V.  Mitchell 279 

Curtis  r.  r)allagh 100 

V.  Eavdstowu 270 

V.  Eeardsley 328 

V.  Cisna's  Adm'r 173,  501 

V.  Ilitclicock 199,  201 

V.  Lloyd 270a 

V.  P.oot 3G1,  373,  382,  475 

Cushing  V.  Arnold 440 

V.  Sbepard 139 

Custer  V.  Dettcrer 443 

Cuyler  v.  Ferrill 604 

D. 

Da  Costa  v.  Villa 010 

Dakin  v.  Hudson 524 

Dale  V.  Pioosevelt 103 

Dalgleish  v.  Hodson 618 

Dalton  V.  Bcntley 240 

Daly  u.  Matthews 553,  555 

Dame  v.  Wiugate 283 

Damon  r.  Bryant 529 

Damp  V.  Town  of  Dame 120 

Damport  v.  Sympsou 2.sn 

Dana  v.  Gill 104 

Danforth  v.  Thomjison   577 

Daniels  v.  Clilton 554 

V.  Winslow 345 

D'Arcy  v.  Ketchum 219,  574 

Davenport  v.  Wright 545 

David  V.  Smith 570 

Davidson  v.  Carroll 2 

V.  Frew 301a 

V.   Hcffrom 112 

V.  l\ryers 34(» 

u.  Murphy 37 


Davidson  v.  Hoot 385 

Davio  i\  McDaniel 319a 

Davies  r.  Cottle 326 

t'.  Davies 57 

V.  Lowndes 410 

r.  Pcttit 407 

Davis  V.  Auable 229 

V.  Barr 427 

V.  Benton 367,  S68 

V.  Connelly's  Ex'r 559 

V.  Ehrman 394 

V.  Headley 5G4,  576 

V.  Lane 401 

t'.MUburu 427 

V.  Morris 555 

r.  Ownsby 366 

V.  Shaver 38,  63,  C7,  97 

V.  Talcott  272,  276,  282 

V.  Wilbourne 171 

r.  Wood 102 

Dawson  i\  Coles 106 

Day  V.  Cammcron 57 

Day  V.  Hamburgh 140 

V.  Leal 229 

V.  Vallette 276 

Day  V.  Zimmerman 194 

Deacon  r.  G.  W.  II.  R.  Co 272 

Da  Armond  v.  Allen 336 

De  Brimont  v.  Penuiman 588 

De  Castro  v.  Fiichardson 69,  72 

De  Cosse  Drissac  v.  Eathbone. . .  .588 

594 

De  Louis  r.  Meek 498 

Do  La  Vergne  v.  Everton 389 

DoPiicmer  v.  De  CantiHon 487 

Do  at.  Romes  v.  C.  C.  &  N.  Co..  .257 

Do  Vcndell  v.  Hamilton 3G6 

Deadrich  i'.  Harrington 51 

Dean  v.  Abel '. 538 

V.  Kelson 127 

V.  Thatcher 124 

Debell  v.  Foxworthy's  Heirs..  199  205 

Delacy  v.  Kcuso  Kav.   Co 531 

Deland  v.  Iliett 403 

Delah  v.  Hunter 23 

Dolancy  v.  Gault 131 

Delaware  t'.  Ensign 550,  554 

Dcloach  V.  Mvrick 474 

Demerrilt  v.  Lyford 249,  435 

Demming  i\  Weston 80 

Dempsey  v.  Bush 470 

Donegre  v.  Ilaun.  .388,  393,  442,  444 

Den  V.  Richman 366 

Dennett  v.  Chick 234 

Denning  i;.  Corwin 123,  125 

Dennis  r\  Snell     458 

Dcnnison  r .  Hvde 257 

V.  Williams 432 

Denny  i\  Eddy 464 

V.  Reynolds 316 

Dequindre  ?,'.  Williams 131 

Derby  v.  Jacques 5,  201,  330 

Derland  t'.  Harrington's  Heirs. .  .608 

Dcshong  !•.  C'ain 89 

Devol  V.  Halstead 234 


TABLE   OF   CASES. 


XIX 


Dewey  v.  Latson, , 393 

V.  Peck 21Q 

Beyv.  Dox 2S7 

"Diiunoml  r.  Lawrence  County  . .  .194 

Dibblo  V.  Trulock  508 

Diblce  V.  Davison 4ijr) 

Dick  V.  McLauriu 97 

Dickens  v .  Bush G2 

Dickenson  v.  Codwise 24 

Dickenson's  Lesseo  v.  Collins  . .  .394 

Dickenson  v.  Gilliland 325 

Dickerson  v.  Tillingliast SGlia 

Dicks  r.  Hatch 120 

Dickson  u.  Hoff 72 

Dilly  V.  Bernard  , , 503 

Dimes  v.  G.  J.  Canal  Co 145,  234 

Diniick  v.  Campbell 83 

Ditson  V.  Ditson 582,  5S4 

Doak  V.  Wiswcll 299 

Doan  V.  Holly    97.  102 

Doaue  v.  Glenn 72 

Dobson  V.  Pearce  .  133,  435,  492,  575 

Dodd  V.  Astor 32G 

r.  Brott    4Q(J 

Dodgson  V.  Scott 32G 

Dodswell  V.  Impsey 530 

V.  Stewart 89 

Doe  V.  Boulton    343 

V.  Dennison 154 

V.  Eyton 499 

V.  Huddai-t 284 

V.  Ingersoll 480 

V.  Jones 405 

V.  Langs 297 

V.  Leatberby G3 

V.  McDenongh 117 

V.  McKuight 338 

V.  Oliver 595 

V.  Peskins 71 

V.  Scolen 295 

V.  Wright 295 

Doglioni  v.  Crispin 605rt 

Dollfns  V .  Frosh 325,  32G 

Domiuick  v.  Ecker  „ , . , 529 

Donaldson  v.  Thompson  ...... .614 

Donnelly  v.  Stewart 432 

Donner  v .  Palmer 393 

Doody  V.  Higgins 157 

Doolittle  V.  Don  Mans 307 

Dorente  v.  Sullivan 12u 

Dorr  V.  Brice 538 

V.  Stockdale 1G3 

Dorrance  v.  Scott  ]  50 

Dorset  V.  Manchester 419 

Dorsey  v .  Dorsoy , .  „ 70 

t\  Thompson 484 

Doss  V.  Tyack    90 

r.  Wacrgouer 121 

Doty  V.  Brown 253,  259,  27G 

Donb  V.  Mason 395 

Doughty  I'.  Fawn 451 

Douglas  V.  Douglas 542 

V   Forrest 588,  589 

V.  Fulda 1S5 

V.  Hertson 395 


Douglas  V.  Rowland ISO 

V.  Wickwire 78 

^J.  Yallop   89 

DoM'ling  i\  Polack   17 

Down  V.  Fuller 337 

V.  Lent 531 

Downo  V.  Lewis  57 

Downer  i\  Dana 452 

V.  Shaw 5G6 

U.S.  R.  Bank 428 

Downin  u.  Sprecker 172 

Downing  i'.  Herrick 530 

V.  Still 91,  97 

Dows  V.  ]\IcMichaol IGO,  283 

Doyle  V.  BeiUy 280 

Draggoo  v.  Graham 571 

Drake  v.  Davenick 126 

V.  Mitchell 229 

Draper'.s  Ex.  v.  Norman G04 

Dresser  v.  Brooks 245 

Di-exel's  Appeal 91 

Driscoll  V.  Damp 273 

Drum  V.  Kelly 448 

Dramm,  v.  Sherman   426 

Drummond  v.  Anderson 39 

Dryden  v.  Dryden 539 

Duboia  i'.  Dubois 434 

Ducommon  v.  Hysiuger 412,  547 

Duffield  V.  Scott   184 

Duke  de  Cadaval  v.  Collins     286 

Duncan  v.  Holcomb 271,  558 

V.  Lj'on 504 

Duncan  i'.  Stokes   259 

Dunckell  v.  "Wiles  273 

Dunham  ti.  Downer. . .  ,226,  281,  487 

V.  Waterman 553,  588 

Dunlap  V.  Clements 95 

V.  Cody 5G4 

V.  Glidden 2S9 

Dunn  V.  Dunn 5G8 

V.  Tish 487 

V.  Murray 322 

V.  Pipes 330 

Durant  v.  Essex  Co 270 

Duchess  of  Kingston's  Case.    .  . .  249 

250,  284 

Dutton  V.  Woodman 315 

Duvall  V.  Fearson 559 

Duvckinck  v.  Clinton  Ins.  Co.   .  .456 

D wight  1'.  Newell 362 

V.  St.  John 325 

Dwyer  i\  Goran 329 

Dyckman  v.  Mayor  of  N.  Y 523 

Dynes  v.  Hoover 529,  531 


E. 


Earl  of  Bandon  v.  Becker  250 

Earl  V.  Crouch 205 

Early  v.  Garland I.jS 

Earufit  V.  Winaus 393 

Earthman  r .  Jones 123 

Easley  v.  McClinton 5S4 

E  isterly  v.  Goodman 436 

Eastman  v.  Cooptr 254,  256,  273 


xs 


TABLE   OF   CASES. 


Eastman  v.  "Laws 279 

c.  Sclietller 330 

t'.  Wiitei-mau 131 

Easton  v.  Brattou .  .271 

Eaton  t'.  Badger liU 

EcUo  r.  Cowau 478 

Ea^er  V.  Geer 513,  553,  537 

Ed'^cU  V.  Sigerson 233 

Edmiston  v.  Lydo 201 

Edmonds  v.  Montgomery 421 

Edmonson  v.  Moseby's  IleirK. . .  .492 

Edson  V.  Edsou     99 

Edwards  i'.  Bauksmith 193 

Edwards  v.  McCurdy 139 

V.  Osgood 93 

i\  Stevens 320 

V.  Stewart 25G 

V.  Toomer 133,  133 

Egberts  v.  Wood 157 

Eiile  V.  Bingliam ICO,  279 

V.  Brown 3GG 

Ebrman  r.  Kendrik 202 

Eitcl  u.  Foote 133 

Ela  V.  Smith 530,  531 

Eklred  v.  Ilazlitt's  Adm'r 444 

Elliott  V.  Hayden 174,  23G,  237 

V.  Holbrook 545 

V.  Morgan 53 

V.  Page 303 

V.  Porter 223,  233 

V.  Shaw  115 

V.  Waring 521 

Ellis  V.  Ckark 433 

V.  Kelly 289 

V.  McHenry 599 

V.Mills 330 

V.  Smith 4Ga 

V.  Tonsley 337 

Elstcn  V.  Piobiu 333 

Elsworth  u.  Campbell 498 

V.  Moore 143 

Elston  V.  Schilling 112 

Elwell  V.  McQueen 2G1 

Ely  V.  Fallman 121 

Emerson  v.  Sansomc 302 

t).  Udall 4^3 

Emery  v.  Fowler 179,  273 

V.  Nelson 237 

V.  Whitwell    ,. 7-2ri 

Emmerson  v.  Ilerriford 277 

England  v.  Lewis 393,  401 

Eno  V.  Crooko 471 

Ensworth  v.  Lambert 20] 

Enwald  v.  Waterhoiit 31G 

Episcopal  Academy  v.  Frieze  . . .   333 

Eroin  V.  Brady 303a 

Erwin  v.  Pulherford 4G2 

V.  Vint 100 

Eshclraan  v.  Shuman 15G 

Etna  Life  Ins.  Co.  v.  McCormack, 

102 

Etna  Ins.  Co.  v.  Swift 2 

Evans  v.  Ashby 124 

V.  Commonwealth 180 

V.  Jusduo 559,  5G4 


Evans  v.  Bees 50 

V.  Sprigg 214 

V.  Tatcm....248,  434,  451,  4G1 
Evansville  II.  R.  Co.  v.  Evansvillo, 

523 

Eversolc  v.  Plank 4G0 

Ewer  V.  CofRn 564 

Ewing  V.  IiIcNairv 284:-(,  502 

V.  Peck..' 5il 

Eyres  v.  Sedgwicke 239 

F. 

Fagg  V.  Clements 521 

Fairchild  v.  IloUey 2_9 

Falkuer  v.  Guild .123- 

Fannin  v.  Thompson 277,  281 

Farmers'  Loan  Co.  v.  Walworth.  5l8 

Farmer  v.  Logers 484 

Farr  v.  Lad  1 131,  520 

Farrar  v.  drmichael ...  .■!5G 

Farrington  v.  Payne 241 

Fash  V.  Kavesies 193,  366 

Fasset  v.  Tallmadge 477 

Faulk  V.  Kellum .55 

Faulkner  i'.  Campbell 532 

V.  Davis 172 

V.  Harwood .  507 

Faxon  v.  Baxter « 95 

Fay  V .  Ames ISO 

Feaster  v.  Fleming 484 

V,  Pomeroy 133 

Feehy  v.  Shirley 79 

Fecly  t,'.  Shirley 83 

Fellows  V.  Fellows 379 

Felterr.  Bcalo 211 

Feltner  v.  Mnllincr B'3a,  231 

Fonn  V.  Dugdale 159 

Fennel!  v.  Jones 71,  72 

Fenton  v.  Garlick 97 

Fcrau.  Fera 313 

Fergus  v.  Woodworth 484,  C05 

Ferguson  v.  Howard 411 

V.  Mahon 453,  594 

Ferrer's  Case 235,  293 

Ferrier  v.  Buzick 204 

Ferris  v.  McClure  83 

Feversham  v.  Emerson  2S4 

Few  V.  Blackhouse 436 

Fiegler  v.  Fiegler 193 

Field  V.  Flanders 173 

V.  Gibbs 128 

V.  Sanderson   334 

Filley  v.  Duncan 337,  364,  367 

Finch  V.  Earl  of  Winchelsea 357 

V.  Newham 191 

Finneian  v.  Leonard 132,  5C3 

Finuignn  t.  Manche.-iter 45 

First  National  Bank  v.  Balcom  . .  517 
V.  Rogers. .  .475 

Fischli  V.  FischU 314 

Fish  V.  Emerson 88,  53,  55 

V.  Lane 431 

V.  Parker 261 


HAHLE   OF   CASES. 


XXI 


Fisher  v.  Fislior 229 

V.  Footo... 312 

V.  Oglo G18 

Fislimono'ers  v.  Eobertson  ...  .57,  GO 

Fisk  V.  Miller 272,  275,  311 

Fitch  V.  Cornell 29;J 

Fitch  i>.  Scot 7 

Fithiau  v.  Monks 135 

Fitzhugh  V.  Bliike 441 

V.  Caster 133 

Fitzsimmons  r.  Ins.  Co 618 

Flauij^an  v.  Bruner 514 

Fleming  v.  Jcncks 100 

V .  Johnson 135 

Fletcher  v.  Campbell 259 

V.  Holmes 330 

U.Wells 102 

Flichinger  v.  Hull 51G 

Florence  v  Jennings 2o8 

Floyd  V.  Browne 23G 

Folger  V.  Columbia  Ins.  Co 504 

Follet  V .  Hoppe 288 

Folsom  V.  C'arli. .  .■ 355 

Foltz  V.  Prouse 263 

Foot  V.  Glover 45 

V.  Sprague 2S1 

V.  Stevens 124 

Foote  V.  Gibbs 270 

Footman  v.  Stetson 2S6 

Forbes  v.  Eden 531 

f.  Hvde b3,  527 

Ford  V.  Babcock 518 

V.  Doyle 141 

V.  Stuart 4-22 

Forder  v.  Davis 3G4 

Fore  V.  Manlove 429 

Foreman  v.  Carter 98,  li7 

Forga^  V.  Conrad 26 

Forman  v.  Scott 98 

Forqner  v.  Forquer 70,  72 

Foster  v.  Chapman 343 

V.  Evans 299 

■L'.  Glazener 123,  458,  5t8 

V.  Jackson 379 

V.  Jones 152 

V.  Martin 108 

V.  Milliner 282 

V.  The  llichard  Busteed.  .  .276 

V.  Wells 261,  265,  273 

V.  Yv'ood 501 

Foulk  i\  Colbourn 432& 

Fowler  v.  Doyle 45 

V.  Kennedy 43 

V.  Lee 498 

V.  Piickerby 435 

V.  Savage 416,  419 

V.  Shearer 285 

V.  Whiteman 131 

Fox  V.  Hoyt 122 

V.  Woodbury 245 

Foxcroft  V.  Barnes 307 

Francis  v.  Cos 109 

Fraj-es  v.  Worms 4G0 

Frazier  v.  Bishop 541 

V.  Moore 220 


Freeman  v.  Bass  256 

V.  Caldwell 478 

V.  Cluto 312 

V.  Freeman 172 

V.  Tranah 57,  GO 

Frees  v.  Ford 518 

Frehgh  v.  Brink    553 

French  v.  Loyal  Ins.  Co 209 

V.  Neal 161 

V.  Pease 575 

V.  Shotwell 512 

V.  Tombn 604 

Friend  v.  Hamill 530 

Frierson  v.  Moody 502 

Frink  v.  Frink 63,  72 

Frost  V.  Dodge 108 

V.  Koon 156,  303,  555 

V.  McLeod 484 

Fry  r.  Taylor COS 

Fulbright  v.  Cannefox .513 

Fuller,  Ex  parte 337o,  557 

Fullevton  v.  Horton 559 

V.  Kslliher 48a 

Fulton  V.  Ilaulow 271 

Furnold  v.  Bank  of  Mo 391 


G. 


G.  N.  E.  E.  Co.  V.  Mossop  ......  247 

Gable  v.  Miller 531 

Gage  V.  Brewster 398 

V.  Bogers 510 

Gaines  v.  Betts 53« 

Gainsborough  x\  Gifford 4S5 

Galbraith  v.  Neville .592 

Galpin  v.  Page 131 

Galushat;.  Butler 121 

Gambette  v.  Broch   loO 

Gauaway  v.  The  State 89 

Gandall  v.  Finn 554 

Garber  v.  Commonwealth ISO 

Gardiner  v.  Houghton 599 

Gardner  v.  Buckbee . .  249,  253,  256, 

273 

V.  Bering 70 

V.  Henry 432 

V.  Jenkins 487 

V.  Spivey 339 

Garland  v.  Tucker 4G1 

Garnett  v.  Macon 163 

Garrison  v.  Savignac 1G2 

Garth  v.  Ward 191 

Garlhwaite  r.  Wentz 4G4 

Garvey  v.  Jarvis 4G3 

Garvin  v.  Garvin 357a 

Garwood  v.  Garv/ood. .  .154,  249,  257 

Gaskell  v .  Gaskell 172,  3C6 

Gates  V.  Preston 256,  330 

V.  Salmon 28 

V.  Treat 319a 

Gaullagher  v.  Caldwell 4 16 

Gavin  v.  Graydin 458 

Gay  V .  Gay 542 

i;.  Minot, 146 


xxn 


T.\BLE  OF  CASES. 


Gay  V.  Wells 275 

Gear  v.  Supervisors 545 

Gees  V.  Shaunon 52i 

Gellu.  Bead 313 

Gelston  v.  Iloyt G13,  GIG 

Gemmell  v.  llice 127 

Geuella  v.  Relyea 40 

General  S.  N.  Co.  v.  Guillou 588 

Gerald  v.  Burtheu .544 

Gere  v.  Gundlach 91 

German  Church  v.  Seibcr 531 

George  v.  Alexander    .  ,.  „ , 50G 

V.  Gillespie 284 

V.  Strangs'  Ex'r 507 

Georges  v.  Hufschimdt 1G2 

Gerrish  v.  Brewer 2G7 

V.  Johnson 105 

V.   Tratt  261 

Gibbiu  V.  Doiigherty 199 

Gibler  v.  Trimble 201 

Gibson  v .  Choteau 63 

V.  Nicholson 419 

V.  Wilson 71 

Giddens  v.  Lea 502 

Giffiird  V.  Hort 172 

Gifford  V.  Thorn   500 

Gilbert  v.  Graham 251 

Giles  V.  Nathan 95 

GiUespie  v.  Conn.  Ins.  Co  570 

V.  Van  Egmont 336 

Gillilan  v.  Spratt  2G1 

Gillilaud  V.  Seller's  Adm'r 120 

Gilman  v.  Contra  Costa  Go 15 

V.  Foote 238 

V.  Lewis 570 

V.  Elves ,...267 

Gilpin  r.  Page 87 

Giugell  V.  Home 608 

Gist  V.  Davis   18G,  249,  270 

Glass  V.  Glass 64 

V.  Wheeler 257 

Gleasoutj.  Peck 95 

Glidden  v.  Packard 129,  533 

Gildwoll  r.  Spaugh 124 

Globe,  The  611 

Glover  V.  Halman 126 

Glukanf  v.  Keed 329 

Goddardti.  Benson. 4G0 

V.  Gray 595 

Godef roy  v.  Joy 409 

Godfrey  v.  Godfrey 304 

Goix  V.  Low 618 

Goldhawk  v.  Duane 465 

Goldsberry  v.  Carter 108 

Golightly  V.  Jellicoo 274 

Goudy  V.  Hall 133 

Gooch  V.  Atkins 478 

Goodall  V.  Harris 45 

Goodess  V.  Williams 305 

Gooding  v.  Kingston 605 

Goodnow  V.  Smith 418 

Goodrich  r.  Bodurtha 218 

V.  City 267 

V.  Jenkins 576 

•u.Gale 240,  242 


Goodwin  v.  McGhee 193 

V.  Williams 366 

Gordan  v.  Farrar .531 

Gore  V.  Stackpole 205 

Gormly  v.  Mcintosh 121 

Gorrill  v.  Whittier 145 

Gossett  V.  Howard 124 

Gossom  V.  Donaldson 202 

Gottu.  Carr ,...503 

V.  Powell 482,484 

Gould  V.  Lockett 3iila 

Gove  V.  Cather 381« 

Gooer  v.  Doheny 366a 

Governor  v.  Bead 462 

Goucher  v.  Ckiyton 330 

Goiirlay  v.  Hutton 542 

Goverueur  ik  Titus 359 

Gracier  v.  Weil 109 

Graff  V.  Kipp 394 

V.  M.  &  M.  Trans.  Co 97 

Gragg  V.  Eichardsou 417 

Graham  v.  Gordon 407 

V.  Grigg 577 

V.  Long 150 

V.  Lynn 66,  67 

V.  Maingay 249 

V.  R.  E.  Co 158 

Grand  T.  E.  W.  Co.-v.  Amey 16 

Grant  u.  Bledsoe 4G1 

V.  Button 272 

Graves  v.  White 275 

V.  Woodbury 427 

Gray  v.  Brignardello 68 

V.  Dougherty 249 

V.  Gillilan 284 

V.  Larrimore 127 

t;.  McNeal 517 

V.  Palmer 40 

?;.  Piugry 247,460 

V.  Swan 618 

Greathead  v.  Bromley 326 

Greathouse  v.  Bromley 249 

Greely  v.  Smith .260 

V.  White 460 

Green  v.  Branton 150 

t'.  Banks 16 

V.  Burke 475 

V.  Clarke 1G6 

V.  Hamilton 101,3.30 

V.  Marks 355 

V.   Massie 507 

V.  New  Eiver  Co 417 

V.  Sarmiento  . . .  .245,  570,  575 

V.  Slayter 197 

V.  Van  Buskirk 573 

V.  White 191 

Greene  v.  Daily 428 

V.  Greene 334 

t;.  Haskell 489 

Gi-eenlaw  v.  Greenlaw 5S0 

Greenleaf  t'.  Maher 489 

Greer  v.  Mayor  of  N.  Y Ill 

Gregg  V.  Cooke 121 

Gregorys.  C.  G.  &  C.  E.  E.  Co.  .144 
i^.Ford 498 


TiVBLE   OF   CASES. 


XXlll 


Gregory  u.  Haynes 140 

1.1.  Nelson 2 

Griffie  v.  :\IcClnng 23G 

Griffin  v.  Cunniughaiu 'JO 

V.  Eaton 575 

V.  lli-ynolcls l'S7 

Griffith  V.  Clarke 149 

V.  Oglo 5'i 

Grignon's  Lessee  v.  Astor iL'i 

Grimes  o.  Morris 12J 

Griowold  r.  Hill 57,  21G,  377 

V.  Jackson 159 

V.  Rutland 05 

V.  Stewart 337,  445 

Groning  v.  Ins.  Co C15 

Grout  V.  Chamberlain 1G3 

Grover  v.  Grover 412 

Groves  i-.  Brown 167 

Gucrin  v.  Danforth 154 

Guest  r.  Warner 271 

Guirard  v.  Hey  singer 15  i 

Guiteau  v.  Wisely 3GG,  481 

Gulick  i>.  Lodcr 45G 

Guun  V.  IIowolI 5G5 

GuntUer  r.  Wight 580 

Guthrie  v.  Baskline  ...    462 

r.  Howard 150 

Gwiuu  V.  Carroll 124,  132 

V.  McCarroll 133 

V,  Williams 513 

H. 

Hackett  v.  Connett 279 

V.  jManlove 330 

Hackworth  i'.  ZoUars    282 

Haglcr  V.  Mercer 61 

Hahnr.  Hart ^89 

V.  Kelly. .  .78,  83,  123,  124, 125, 

130,  132 

Haight  V.  Green 106 

Hair  v.  Lowe 486 

Halcombe  v.  Loudermilk 478 

Hale  V.  Angel    432 

V.  Huse 322 

Hall  V.  Ilamlin 333 

V.  Ilariison 217 

V.  Holmes lOO 

V.  Hudson 38 

V.  Jack 193 

V.  Nelson 201 

V.  Odber 220 

V.  Thayer 146 

V.  Tuttlo 53 

V.  Williams 562,  564,  573 

Hallett  r.  lligbters 98,  127 

Hallock  r.  Jaudin 538 

Halloway  v.  Plainer 3e6a 

Haliovell  v.  McDonnell 227a 

Hamilton  v.  Boardmore 358 

V.  Cutts 186,  187 

r.  Quimby 272 

V.  Wright 12^ 

Hamlin  v.  Beavan 196 

V.  McCahill 510 


Hammct  i\  Blount 171a 

Ilanmiock  v.  McBride 324 

Hampton  v.  McCounell 559 

Hammatt  v.  Wyraan 472,  480 

Ilammou  v.  Smith 559 

Hammond  v.  H(;well   530 

Ilampson  v.  Edelen 363,  364 

Hampton  v.  Levy 366 

Hancc's  Apjieal 343 

Hancock  v.  Welsh 256 

Haudly  v.  Svdonstricker 367 

Ilanford  v.  McNair 109 

Hanly  v.  Ileal  Estate  Bank 78 

Hauna  v.  Guy 216 

Hannaford  v.  Huun   284 

Hanson  v.  Armstrong 171 

Hanover  c.  Turner 580 

Hau.schild  v.  Stafford 484 

Harbeck  v.  Yanderbilt 472,  473 

Harbin  v.  Chiles 560 

Harbor  v.  P.  .U.  R.  Co 101 

Hard  v.  Shipman 133 

Hardin  v.  Lee 91 

Harding  .;..  Aldcn 582,  584 

V.  Allen 579 

V.  Cowing 549 

V.  Hale 269 

V.  Larkin 181 

Hardy  v.  Broaddus 148a,  489 

Hargrave  v.  Hargrave 100 

Hargis  v.  Morse 117,  124 

Hargus  v.  Goodman 311 

Ilarkness  1'.  Austin 97 

Harlan  v.  Berry    235 

Harmon  v.  Gould 529 

Harper  v.  Harvej 462 

V.  Hooper 284 

Harrington  v.  Glenn 441 

V .  Higham 43 

V.  Sharp 367 

V.  Woffard 126 

Harris  v.  Billingsley 71 

V.  Clark 29 

V.  Colquit  ...    319a 

V.  Dunn 231 

V.  Hammond 328 

V.  Harleman 564 

V.  Harris 249,  273 

V.  Miner 317 

u.  Plant  &  Co 159 

V.  Saunders 165 

V.  Youman 513 

Harcison  v.  Farnsworth 28 

V.  Harrison  ..416,  506,   584 

V.  Heath  orn   60 

V.  Morehouse 319a 

f.  Ncttleship 487 

V.  Stewartsou 173 

V.  Wood 261 

Harshey  v.  Blackmarr.  .128,  499,  509 

Hart  V.  Lazaron 497 

V.  Mar.^hall  .    193,  208 

Harteau  v.  Harteau 581 

Ilartman  v .  Osgood 150 

Harvey  v.  Large 2G1,  265 


SXIV 


TABLE   OF   CASES. 


Harvey-r.  Montague 20G 

V.  Tyler 123 

V.  Walden 4G3 

Hasketh  v.  Ward 411 

Hasscll  V.  Hauiiltou 5C5 

Hathaway  v.  Hemmingway IvO 

Hanghcy  v.  Wilson 12G 

Hanglitwout  v.  Miirisliy 191,  195 

Ilauer's  Appeal 91 

Havclock  V.  Rockwood G98 

Hawbiidgc  u.  De  La  Croucc 499 

Hawed  V.  Hathaway 435 

V.  Wcdtham IGl 

Hawkins  v.   Bowie   94 

V.  Lambert 105 

Hawks  V.  Truesdell 271 

Haydo  v.  Green 272 

Haydcu  v.  Bucklin 195, 202 

V.  Hayden 4  >9 

Hayes  v.  Ward 470 

Hayues  r .  Meeks 12  J 

Hays  r .  McKee 78 

V.  MUler 66,  401 

Hay  ward  i\  Eibbins 435 

Head  v.  Gervais 43 J 

Healy  v.  Root 227 

Heauy  v.  Parker 407 

Heard  v .  Lodge 180 

Heath  v.  Frackleton 2,s3 

Heatlicote  v.  Wing 57 

Heatherly  v.  Hadley 4^0 

Heffurmau  v.  Porter 531 

Hegelcr  v.  Heuckell Gl,  72 

Heil  and  Laner's  Appeal 3l7 

Helfrinck'iJ  Appeal 448 

Hel)u  r.  Short IG 

Hemminway  v.  Hickes 539 

Henderson  v.  Gibson 9  J 

V.  Henderson 434, 

591,  594 

^;.  McVay 427 

V.  Ping 39y 

V.  Eeeves 231 

V.  Stamford 221,  570 

Heudrick  v .  White 520 

Hendricks  v.  Whittemore 1-G 

V.  Decker 458 

Hendrickson's  Appeal 370,  423 

Hendrickson  v.  Hinckley 501 

Heuly  I'.  Soper 434,  598 

Henry  v.  Keys 478a. 

HensJey  v.  Force 559,  530 

Hepburn  v.  Dundas 270 

r\  Sewall 237 

Herbert  v .  Eowles 100 

Hernandez  v.  James 121,  497 

Herring  v.  PoUey   45 

Herrington  v.  Herrington. . . .  195,  203 

V.  People 517 

Herriter  v.  Porter 24 1 

Herscy  v.  Turbett 193 

Hervey  v.  Edmonds 91,  98 

Hess  V.  Beekmau 53«,  2G 1 

f.Colc 57,  129 

Hettrick  v.  Wilson 103 


Hewlett  V.  Hewlett 50-5 

Hibbard  v.  Eastman 48G,  492 

Hibshman  v.  DiiLeban 249 

Hickman  v.  Jones G04 

Hidden,  Estate  of 1G3 

Hidden  v.  Saunders 476 

lligbee  V.  Bowers 16 

Higdon  V.  Conway 529 

Higgins'  Trust's 358 

Higgius  V.  Peltzer 150 

Hilly  V.  Hartridgo 502 

Hill  V.  Bouman 258 

V.  Bowj'er 503 

V.  Citvof  St.  Louis 96 

V.  Crump lOG,  109, 114 

V.  Freeman 273 

^.Hill .• 514 

x\  Hoover , 72 

V.  Town  of  Sunderland 90 

Hills  V.  Sherwood 21 

Ililisborougli  V.  Nicholls 289 

nine  V.  Hussey 146 

Hiues  V.  Jacobs  448 

t'.  Willis    524 

Hinesly  u.  Hunn's  Adm'r 474 

Hinson  v.  Wall 52.  571 

Hinton  v.  Brown 79 

I'.  Odenht-imor 472 

V.  Towers    ,  570 

Hirchew  v.  Hamilton 253 

Hiriat  v.  Ballon 34 

Hivschfleld  v.  Franklin 43 

Hitchcock  V.  Aickcns 559 

Hitchen  v.  Campbell 255 

Hix  V.  Davis   235 

Hoard  v.  Wilcox 475 

Ilobbs  V.  Duff 277,  278,  427 

Hobs  V.  Henning 618 

Hobson  V.  Yaucy IGO 

Hodges  V.  Ashurst 79 

V.  McCabe SGla 

i:.  Templar 56 

Hodgraan  r.  W.  P.  B.  B.  Co 4-5 

Hodsall  V.  Stallebrass  ; . . 241 

Hod^ou  V.  MeCouuell 173,  462 


Hoffmire  v.  Hoffman   498 

Hoffming  i\  Grove ....    87 

Ho'j;gu.  Charlton    215 

Ilogi;  V.  Waters l81 

Hoguet  V.  Wallace 544 

Holbi'ook  V.  Champlin 475 

V.  Murraj'' 136 

Holland  r.  Trotter 192 

Ilollard  r.  Hatch       2iil 

HoUiugsworth  u.  Bag'^k'V 117 

V.  Barbour 127 

Hollister  v.  Dillon 478 

V.  Hollister 582 

t'.  The  Judges G3,  72 

Holman's  Heirs  v.  Bank. 584 

Holmes  v.  Campbell 124,  452 

V.  Caroudolet 205 

V.  Guion 217 

■u.  Hohnes 564,  580,  583 


TAELE  OF  CASES. 


XSV 


Holmes  v.  Plonio 1)7 

V.  Eemsen 487 

Holroyd  r.  Breare 53  L 

Holt  V.  AUowiiy 570 

Homer  v.  Bro wu 2G 1 

V.  Fish 2S7 

Hook  V.  Hood 248 

Hopf  V.  Myers 210 

Hopkius  V.  Dana 2  j2 

V.  Hopkins 172 

V.  Howard 444,  553 

u.  Lee 248,  257,  25S 

V.  McLai-en ,  201 

Hopkiuson  v.  Sheltou 4G0 

Horn  V.  Lockliart 604 

Horn  V.  Jones 193 

Hoskins  v.  Jolinsrjn 357a 

Hulchkiss  V.  Cutting 40,  131 

V.  Nichols 271 

Houghton  V.  Mariner 214 

Houklen  v.  Smith —  530 

Houlditch  r.  Donegal 595,  598 

Houston  V.  Musgrove 2G0,  234 

Houston  V.  Wolcott 503 

How  V.  Dorscheimer 557 

Howard  v.  Albro 310 

V.  Clark 129,  529 

V.  Cousins 45G 

V.  Kennedy 171 

V.  Mitchell 283 

V.  North 150 

V.  Smith 319 

V.  Thorton 124 

Howe  r.  Independence  Co lOG 

Howell  V.  Shands 430 

Howorton  v.  Bprague 475 

Howes  15.  Austin 261 

Hoyt  V.  Howe 355 

V.  Hudson 475 

V.  Martense 230 

Hoxie  V.  Wright  559 

Hoy  V.  Allen   31G 

Hubbard  v.  Dubois 155 

V.  Hobson 506 

V.  Martin 503rt 

U.Phillips 499 

Hubbell  V.  Broadwell's  Heirs  . . .  .484 

V.  Hubbell 581 

Hudson  V.  Carman 177 

V.  Hudson Gl 

Huffer  V.  AUeu 70 

Hugh  V.  Higgs 434 

Hughes  L'.  Cornelius 613 

v.JJ.  a 2C0 

V.  "Whittaker 193 

V.  Wood 102 

Hnghson  v.  Davis 3G0 

Unlet t  V.  Whipple 360 

Hull  V.  Deatiy's  Adm'r 203 

V.  Hull 034 

Hills  V.  Buntim 117 

Humiston  v.  Stainthorp 36 

Hunt  r.  Bates   236 

V.  Breading 475 

V.  Dutcher 454 


Hunt  V.  Grant 344 

V.  Haven 162,201 

V.  Lyls 570 

V.  McClanahan's  Heirs  ...  .211 

V.  San  Francisco 539 

Hunter  v.  Davis  257 

Hunter  v.  Lester 12G 

I'.  Stewart 239 

Huntington  v.  Blakeney 51 

V.  Finch 96,  97 

V.  Grantland 318 

V.  Jew-ett 159 

Huntt  V.  Townsend  358,  545 

Hiiot  V.  Page   70 

Ilurlbert  v.  Hope  Ins.  Co  568 

ilurlburt  v.  Heed 100 

Hurlbutt  V.  Butenop 157,  193 

Hurst  V.  Lithgrow 352 

Hurst  V.  Means 268 

Husky  V.  Maples 4G5 

Ilustin  V.  Ditto . .  95 

Hutchinson  v.  Bank  of  Wheeling. 319 

V.  Bours 42 

V.  Fulghum 55 

Hyde  v.  Curling 61,  68 

Hyde  i'.  Noble 236,  237 

Hydenfelt  v.  Towns 145.  146 


Ilsoy  V.  Wilson 564 

Imlay  v.  Carpenter 245" 

Ind.  Ins.  Co.  v.  Luddington 3 

India  Eubber  Co.  v.  Ho'it 461 

Ingle  V.  McCurry 495 

luglehart  v.  Lee 506 

Inglehart  v.  Maj-er 506 

lugraham  v.  GiWermester 43 

V.  Hall 238 

Ingram  v.  Morris 361a 

V.  Bobbins 55(' 

Inhabitants  v.  Holbrook 181 

V.  Limerick 63,  C8 

Inloe's  Lessee  v.  Harvcj' 193 

Inman  v.  Mead 418 

Inncs  V.  Wylio 531 

luuis  V.  Eoane. 249 

luos  V.  Winsper 530 

Ins.  Co.  r.  French 154 

Irwin  V.  Jeffers 4'^4 

Isaac  V.  Swift 394 

Isaacs  V.  Clark 283 

r.Price , 126 

Ives  V.  Finch 432 

V.  Phelps 463 


Jackson  v.  Anderson 4Gff 

Jackson  v.  Bartlett  4G3, 477 

U.Benedict 379 

V.  Cadwell 4S0 

V.  Chamberlain 366 


XXVI 


TABLE   OF   CASES. 


Jackson  v.  Chapiu 348 

V.  Crawford 4U7 

V.  Cullum 407 

ij.Diffendorir 295 

V.  Griswold n4,  ISO 

V.  Jackson 58(5 

V.  Law 384 

V.  Lodge ^5(.) 

V.  Parder  354 

r.  Smith 83 

■L-.  Tuttle 174 

V.Warren 193,  20G 

i;.  Williams 348 

t).  Wood 2">8 

Jacob's  Appeal 373 

Jacobs  V.  Burgwj-n 91 


v.  Hili: ISO 

V.  Pierce •  •  -IS'i 

Jacques  v.  Withy 379,  476 

Jacquette  v.  Hergunou 459,  5G0 

James  v.  Cavit  '28G 

■u.  Kirby 408 

Janney  v.  Smith 279 

Jarboe  v.  Smith 2G2 

Jarmiu  v.  Saunders 472 

Jarvis  v.  E  ithbone 442 

Jeffries  v.  Moi'gan   557 

V.  Sherburn 348 

Jenkins  i\  Eldredge 71 

V.  Frink 538 

V.  Ptobertson ...    330 

Jenks  r.  Stebbins 517 

Jenness  v.  Jenuess 582 

Jennings  v.  Ashley 57,  59 

Jenuison  v.  Hapgood 487 

Jenny  v.  Glynn   95 

Jessup  V.  City  Bank  484 

Jevne  v.  Osgood 502 

Jewett  V.  Wardleigh 463 

Johnson  v.  Baker 521 

V.  Butler 247 

V.  Coleman 489,  497 

^'.  Eldred «,,114 

r.  Everett 24,  28 

V.  Fitzhngh 245 

V.  Gillett 51 

V.  Jones 495 

V.  Loop 489 

V.  McAusland 555 

v.  Mitchell 369 

V.  Murphy 272 

V.  Provincial  Ins.  Co.   .  .223 

V.  Robortsou 173 

V.  Smith 259,  274,  317 

U.Taylor 104 

•u.  White 259,  260,  460 

•u.  AVright 03,  133 

V.  Unversaw 492 

Jolley  V.  Foltz 518 

Jones'  Cas'.i 347 

Jones-u.  Blake 156 


Jones  V.  Gollis 135 

V.  Ileury 478a 

V.  Jamison 220 

V.  Jones 524 

r.  Kip 538 

V.  Lusk 199 

V.  McNcal 236,237 

V.  Myrick'sEx 3S0 

V.  Petal  lima 329 

V.  Ransom 463,  467 

V.  Robinson 608 

V.  Russell 103 

V.Walker 37,  261 

V.  Weathersbee 310 

V.Williamson 498,  500 

11.  Wilson 469 

Jordan  v.  Wilson  427 

t).  Dennis 121 

V.  Petty 66 

V.  Robinson 596 

Jorgensen  v.  Griffin 40,  41 

Joyce  V.  Joyce   537 

V.  McAvoy 513 

V.  O'Toolo 45 

Judge  V.  Fillmore     452 

Judkius  V.  U.  M.  F.  Ins.  Co 575 

Jndson  v.  Lake 319a 

Julian  V.  Beal 349 

Juukin  V.  Davis 414 


K. 


.324 
563 

208 
.307 


Kaine,  Ux  parte. — ^^ 

Kaner.  Cook 436,  562, 

V.  Fisher 253, 

V.  Rock  Riv.  Co 

Karns  v .  Kunkle 453 

Kasson  v.  People 477 

Katz  V.  August 325 

Kauff  V.  Messner 280 

Kean  V.  Rice 577 

Keaton  v.  Bank 93 

V.  Mulligan 320 

Keel  V.  Jordan 89a 

Keenan  v.  Miller 260 

Keeno  V.Clark 260 

Kelly  V.  Matthews 79 

t;.  Van  Austin 129,  533 

Cowing 553 

Fancher 194,  195 

Gilbert 477 

Schuyler 425 

Sweeney 3 

Kelsey  v.  Bradbury 227 

V.  Murphy 243,  270 

V.  Ward 253 

V.  Wilev 124 

Kemp  V.  Cook" 70,  90,  94,  102 

i\  Squires 100 

Kendall  v.  Hodgkins 553 

Kenn's  Case 610 


Kellogg  V. 

V. 
V. 

Kellogg  V. 


Chiles 171    Kennedy,  In  re 


V. 

V.  Davis 57 

r.  Fales \ 259 

V.  Frost 668 


Kennedy  v.  Lowe 553,  557 

Keunersly  v.  Orpe 179 

Kent  V.  Gerrish 310 


TAELE  OF  CASES. 


xxvn 


Kent  V.  Eicards 489,  492 

Keokuk  Co.  v.  Alexander 272 

Kepp  V.  Fullerton 126 

Kerby  v.  Cbadwell 112 

V.  Elliott 410 

Kerr,  Jure 337a 

Kerr  v.  Blodgett 157 

V.  Bowie 102 

V.Kerr 5G2,  563,  583 

V.  Moore G08 

V.  Straat 7 

Kcrrick  v.  Bransby G08 

KeniL,'an  v.  Eay 80 

Kester  v.  Stark 307 

Keys  V.  Granniss 434 

Kibble  v.  Battler 78,  7  J 

Kieffer  v.  Ehler 194 

Kieliuer  v.  Dengler 44S 

V.  Watts 448 

Kiersted  v.  Avery 363 

Kilbuni  7'.  Woodworth 573 

Kilo  r.  Lumpkin 113 

Kilheflfer  v.  Kerr 247,  249,  310 

Kiugr.  Bill 192 

V.  Chase 256,  257,  273,  284 

V.  Fuller  275 

V.  Goodwin 476 

V.  Grimes 170 

V.  Harris 381 

V.  Hoare 216,  231,235 

V.  Merchant's  Exchange. .    .542 

V.  Norman 180 

V.  Poole 121 

v.  Randall 528 

V.  Savorj'' 320 

V.  Stafford 15,  20 

u.  State  Bank 72 

Kingsland  v.  Forest 432 

Kingsley  v.  Davis 231 

Kinney  v.  Ogden's  Adm'r 485 

Kiusey  v.  Ford 459 

Kinsler  x\  Holmes 4<)5 

Kirby  v.  Fitzgerald 553,  557 

V.  Wooil 79 

Kirklan  v.  Brown 286 

Kirkland  i'.  Smith 412 

Kirkpatrick  v.  Stingley 259 

Kirksey  c.  Bates 79 

Kiser  v.  Wiuans 504 

Kissam  v.  Bough 57 

Kitchen  v .  Campbell 179,  239 

Kitchiiis  c.  Hutchins 78,  136 

Kitsmiller  v.  Kitchen 126 

Kliuk  V.  Steamer  Cusetta 16 

Knapp  I'.  Marlboro   187 

Knickerbocker  v.  Smith 545 

Knight  x\  Macomber 464 

Knowles  v.  Lawton 151 

Knott  V.  Cunningham 21)6 

V.  Jarboe     12') 

Knowell,  Expnrie 379 

Knowles  v.  Davis 5:)0 

Knox  V.  Brown 270a 

V.  "Waldeborough 26 1 

Knox  Co.  Bank  v.  Doty 97 


Kohn  V.  Lovett SOOrt 

Koogler  v.  Huffman  41G 

Konitzky  i'.  Meyer 181,  597 

Kramer  v .  Rebman 2 

Kriess  v.  Seligman   80 

Kucheubeiser  v.  Beckert 513 


Ladd  V.  Blunt 474,  475 

Ladley  v.  Creighton 370 

Lafon  V.  Dessesart 485 

La  Favge  v.  Herter 226 

LaFaycito  Ins.  Co.  v.  French   . .  .568 

Lamb  r .  Shays  355 

Lambert  v.  Parnell 476 

Laaibkiu  v.  Nance 559 

Lamen  v.  Kedge^Tin 2G7 

Lamping  &  Co.  v.  Hyatt 540 

Lamprey  v.  Nudd 152 

Lamsou  v .  Bradley 95 

Landes  v.  Brandt 348 

Lau  Ion  v.  Ferguson 343 

Laudrum  v.  Fi^rmer 497 

Lane  v.  Bommelman   48 

V.  Ellinger 69 

V.  Gover 361a 

V .  Ludlow 363 

V.  Wheless 103 

Langdon  v.  Bullock 113 

V.  Eaiford ._3j27 

Lanniug  v.  Carpenter.  .338,  547,  552, 

553 

Lansing  v.  Eddy 502 

V.  Q'lackenbush  ..478,  478a 

Lapham  v.  Briggsl    561 

Larrabee  v.  Baldwin 4 

Larrimer's  Appeal 366 

Lartigue  v.  Baldwin 1"S0 

Latham  v.  "Wis wall     609 

Lathrcp  v.  Brown 356,  377 

Lathrop  &  Dale's  Appeal 391 

Lathrop  v.  Stuart 452 

Latimer  v.  U.  P.  R.  R.  Co 5G8 

Latterett  v.  Cook 4G1,  565 

Lattimer  i'.  Ryan   510 

liaval  V.  Rowley 4^0 

La\V  i\  Jackson 384 

Lawler's  Heirs  v.  White ....  127,  i;^2 

Lawless  v.  Hackett 554 

Lawrence,  £".1;  pnite 475 

Lawrence  v.  Fast 48 

V.  Hodgson 57 

V.  Hunt    ....160,  258,  273 
V.  Ja-  vis  559,  560,  563,  564 

V.  Martin 425 

V.  Richmond 57 

V.  Vernon 265,  259 

V.  Ware 164 

Lazell  V.  Miller 285 

Lazier  v.  Westcott  .    . .  .414,  591,  597 

Le(  'hevalier  v.  Lynch 159 

LeGraud  v.  Francwco 286 

LeGueu  v.  Gouveneur 277,  501 


XSVlll 


TAELE   or   CASEii. 


Lea  V.  Loa 257 

Leclair  v.  Globeuski 1-31 

Lee  u.Baird 402 

V.  Clark 184,  417 

V.  Figg 557 

V.  Gardner 1.j3 

V.  Kingsbury 257,  333 

r.  Salinas    , 193 

Leese  u.  Hlierwood 17 

Leet  V .  Grant  -. 103 

Lcfferson  v .  Dallas    3o4 

Leigh  x) .  Lillie 7 

Leiper  v .  Erden 4G5 

Leitch  V.  Wells 191,  212, 

Lelaud  v.  Marsh  241 

Lcndall  v .  Pinfold 2.JG 

Lentz  V.  Lamppugh 332 

Leonard  v .  Bryant 337 

Leslie);.  State 318 

Lc'Ster  v .  Iloskins 4S5 

Levistou  V .  Swan 47,  70 

Levy  V.  Joyce Ill 

V .  Thompson o-iS 

Lewis  &  Nelson's  Appeal 253 

Lewis  V .  Armstrong 28  ii:i 

V.  Darling .572 

V .  Dutton 523 

V .  Gamago 4G3 

V.  Mow 197 

V.  Outhau's  Ad 25 

V.  Owen 593 

V .  Palmer 4S0 

V .  Smith 156,  303 

V.   Webb 90 

V.  Woodruff 4G3 

Lick  1'.  Stockdale 87 

Ligou's  Adm'r  v .  Eogers 74 

Lightsey  v.   Harris 517,  S'lO 

Limerick,  Inhabitants  of..G3,  G8,  72 

Lincoln  v.  Flint 95 

V.  Tower.  .459,  5G0,  5G5,  573 

Lind  V.  Adams 49 

Lindell  v.  Leggett 259 

Lindscy  v .  James 503 

Lining  r .  Bentham 530 

Lintz  V.  Thompson 463 

Lipscomb  v .  Grace 21G 

Liriter  v    Mundell 95 

Little  V.  Carrie 527 

V .  Harvey 394 

V .  Price 485 

V.  The  Bank 379 

Littledale  v .  Ilobinson 39G 

LiUletield  !' .  Nichols 377 

Littleton  v.  Richardson 187 

Liverpool  M.  C.  Co.  v.  Hunter  .600 

Livingston's  Petition 335 

Livingston  v.  Jordan 604 

Livermore  v.  Herschcll 2G5 

Lloyd  V .  Barr 158 

V.  Maddox 33G 

V .  Malone 513 

Lock  V .  Nash 270« 

V.  Norbone 1G8 

Lockwood  V .  Wildmon 4G0 


Logan  V .  Hillegrass 497 

Logansport  Gas  Co.  v.  Knowlcs.531 

Lombard  v .  Bayard 404 

London  v.  Gierke 419 

Long  V.  Burnett 524 

V.  Long 234.  4G1 

V.  Morion '.171 

V.  Neville 213 

Longworth  v.  Screven 95 

Loomis  V.  Brown 17 

V.  lliley 193 

Lord  Bagot  v.  Williams 276 

Lore  V .  Truman  260 

Loree  v .  E.eeves 100 

Loring  v.  Folger 140 

V.  Ilsey 15 

V.  Mansfield 285 

Lorraine  v.  Long 281 

Lothian  v.  Henderson 618 

Lough  V.  Thornton 7 

Lounsbury  v.  Purdy 3G3 

Louthrop  V.  Southworth 86 

Love  ?;.  Fairfield 424 

V.  Gihson 180 

V.  Harper   383 

V.  Truman 2i9 

V.  Waltz 253 

Lovegood  V.  White 463 

Lovejoyt;.  Murray. .184,  2:J6,  237,  477 

V.  Webber 95 

LovcU  V.  Kelley 79 

Lovett  1'.  German  Clmrch 434 

Low  V.  Adams 382 

V.  Dore 523 

V.  Musscy 248,  597 

Lowber  v.  Maj'or  of  N.  Y 92 

Lowe  V.  Alexander  ....  .518,  519,  521 
Lowther  v.  Earl  of  Eandor  . , . . .  530 

Lucas  V.  Curry         180 

V.  (rovernor 180 

V.  Le  Comte 239 

V.  Spencer 503 

Ludlow  V.  Dale 615 

V.  Johnson 65,  123 

V.  Kidd 16,  191,  202,  205 

V.  Piamsay 127,  487 

Luscomb  V.  Maloy 114 

Lyford  v.  Do  Merritt 289 

Lyle  V.  Bradford 195 

Lyles  V.  Eobinson 131 

Lyman  r.  Brown 220 

Lynch  ?'.  Kelly 53a 

V.  Rome  Gas  Co 39 

V.  Swauton 253 

Lyon  I'.  Hampton 383,  475 

V.  Lyon 580 

V.  Northrop 463 

V.  Eobbius  515 

V.  Sanford 162 

M. 

M.  &  M.  Bank  v.  Boyd 129 

V.  St.' John...  129,  549 
Macarthey  i;.  Decaix 610 


1ABLE  OF   CASES. 


XXIX 


Macclonalcl  v.  Bovington 227a 

Macdongal  v.  Young 407 

Maclcy  v.  Coates 1=34 

Madrall  v.  TlicUusou 7 

Magheo  V.  Collius 218,  231 

Maglicr  11.  IIowo 79 

Magouu  0.  Ins.  Co GJ 5 

Magrath  v.  Ilurdy 284 

Maguire  i'.  Maguiro 582,  584 

r.  Tyler  248 

Mahoney  v.  Vau  "Winkle 302 

Mailhouse  v.  Inloes 97 

Makepeace  v.  Lukens 72 

Maley  v.  Shattuck CIS 

Mallett  V.  Foxcraft 304 

V.  Uncle  Saiu  Co 521 

Malloncy  v.  Iloran 249,  303rt 

Mallory  v .  Clark 545 

MandcviUe  v.  Perry ._ 78 

Manigalt  i'   Dcas 159,  1G3,  303 

Mankin  v.  Chandler COS 

Manlcy  i'.  JIanloy 584 

Mauly  V.  Hunt 303 

Mann's  Appeal 313 

Mann  v.  liussell ....    79 

Manning  v.  E.  C.  E.  W.  Co 5i;G 

V.  McClurg GO 

V.  Thompson .596 

Manny  i\  Harris 273 

Mansliold  v.  Mclutyre 584 

Manwaring  u.  Kouns 489 

Marino  Ins.  Co.  v.  Young 213 

Marks  v.  Marriott 3.!1 

i\  Eeynolds  545 

Marlatt  v.  Clary „  -,  ^ 417 

Marriner  v.  Smith 355,  512 

Marriott  v.  Hampton 272,  280 

Marsh  v.  Burroughs 248 

Marsh  v.  Pier 23?,  247,  284,  453 

Marshal  v.  Shafter 299 

Marshall  v.  Aiken 22G 

V.  Fisher  .      151 

V.  Rough - .  15G 

Marshalsea.  The  Case  of  . .  .120,  52.) 

Martin  v.  Barnhardt 52 

V.  Crow 28,  35 

V.  Dryden 3G  5 

V.  Hewett G04 

V.  ives 2!7 

V.  Kanouse 87 

V.  Kennedy 259 

V.  Mott    523 

V.  Nicholls  59S 

V.  Stikes 19) 

V.  Weymau 513 

Marvel  v.  Manouvrier 49.S 

Marx  V.  Fore 504 

Mason  v.  Bull 407,  4()S 

V.  Eldred. .  .231,  232.  233,  458 

V.  McXamara 103 

V.  Messenger 334 

V.  Richards 532 

Mass  V .  Shannon 450 

Masser  v .  Strickland. 180 


Massey  v.  Watts 572 

V.  Westcott .306 

Massiugill  u .  Downs 338,  339 

Masson  v .  Sal vy 193 

Mastick  V.  Thorp.  .481,  486,  502,  50G 
Matlieson's  Adm'r  v.  Grant's  Adm'r, 

C3,  72 

Matthews  v.  Duryee 400 

V.  Houghton 38,  G3 

V.  Meuedger 2:)G 

May  V .  Jameson 5C0 

Maybee  v .  Avery 319 

iMayberry  v.  McClurg 489 

Mayer  v .  Foulkrod 159 

Mayes u.  Woodall 512 

Mayo  V .  Ah  Loy 135 

V .  Foley 135 

Mayor  of  ]\Iacclesiield  v .  Gee IG 

Mayor  of  Norwich  v .  Berry 56 

Mays  V .  Hassell 56 

McArthur  v.  Starrett 79 

McBain  v .  McBain 304 

McCall  V .  Hitchcock 18 

McCarver  v.  Nealey 4G3 

MeCaulcy  v.  Fulton 130 

McClanahan's  Heirs  v.  Henderson, 

121 

McClellan  v.  Cornwell 54 

McCluug  V.  Beirne 470 

McCluro  V.  Gulf  R.  R.  Co 530 

McClnro  v.  McClure 304 

MeCoUum  v.  Eager 34 

IMcConologue's  Case 324 

McCormack  v .  IMcClure ^05 

V.  Wheeler Co,  74 

McConnell  v.  Wilcox 5  31 

McCoy  V.  Nichols 103 

McCreary  v.  Casey 2S1 

McCreery  v.  Everding 153 

V.  Forston    131 

McCuUough  V.  Clark 327 

V.  Doak 105 

McCurdv  V.  Robinson 231 

McCutchen  v.  Miller 194 

McDaniel  v.  Goodall 4G4 

McDermott  v.  Clay 5G4 

McDonald  v.  Butler 432 

McDonald  v.  Craudall 3^o 

V.  Falvey 95 

■u.  Wilkie 529 

McDonald's  Succession 436 

McDonaU  v.  McDonall    487 


25S 
519 


McDonough's  Succession  . .  2 

l^IcDowell  V.  McDaniels 

McElmoyle  v.  Cohen 5.j9 

McEwers  v.  Markley 102 

McF.idden  r.  Worthington  3G0 

McFarland  f.  Derbishlro 605 

McFarlane  v.  Harrington 412 

McGeo  L'.  Overly  237 

McGilvrey  v.  Aveiy 221,  224 

MeGregor  i'.  ]\IcGregor 572 

McGuinty  o.  Ilerrick 272,  2/9 

Moluloc  V.  Hazleton 487 


XXX 


liSJSLE  OF  CASES. 


Mcintosh  V.  ChoTV -475 

V.  Jarviu 124 

V.  Lawn '23'J 

Molutyre  v.  Miller 472 

McJilton  V.  Love 482,  559 

McKeller  v.  Bo  well 180 

McKelwaj-  v.  Joues 98,  49',) 

McKenzie  v.  L'Ainoreiix 157 

V.  riiimsav 524 

McKim  r.  Odom . .  /. ii>l 

McKimley  v.  Tuttlo  ..  ..105,  109,  113 

McKiuzie  r.Harding  337« 

McKissick  v.  McKissick 329 

McKnight  V.  Dimlop  . .  .311,  31G,  409 

McLaren  v.  Kehler 575 

McLean  v.  Cook 529 

V.  Hungariu  275 

V.  Meek I<'i3 

McLendon,  Ex  parte 104 

McLendon  v .  Dodge 505 

V.  Jones 89 

McLennan  v.  McMonies 227(( 

McMillan  i\  Richardson 121 

V.  Wenner 3G3 

McNair  v.  O 'Fallon 283 

McNairy  v.  Castlebury 72'i 

McNeil  V.  Bean 338 

V.  Halmark 521 

V.  lOthN.  B 194 

McPhersou  v.  Forrester 432 

McPherson  v.  Housel 193 

McQueen  v.  Fletcher 407 

McRae  v.  Mattoou 570 

McEeady  v.  Eogers  . . .  .237,  235,  251 

McVicar  v.  Beedy 219 

Meacham  v.  Dudley 112 

Mead  v.  Mead 481 

V.  Mitchell 305,  306 

Means  v .  Means 72 

Mearns  v.  G.  T.  R.  W.  Co 90 

Mech.  Bank  v.  Gorman 370 

Meddowcraft  v.  Hugueuin GIO 

Meech  v.  Allen 395 

Meek  v.  IMathis 27 

Meeker  v.  Van  Rensselaer 37 

Meem  v.  Rucker 5G0a 

Meily  v .  Wood 357a 

Melhop  V.  Duane.    .    573,  574 

Menderbach  v.  Hopkins 409 

Menifee  v.  Myers 502 

Mercein  v.  People 324 

Mercier  v.  Chace 2G4 

Merchants'  Bank  v.  Mariposa  . .  .261 
Merchant's  Ins.  Co.  v.  De  Wolf.  .576 

Merle  v.  Andrews 20,  35,  96 

Merriam  v.  Whittemore 253 

V.  Woodcock 254 

Merrill  v.  Sherburne 90 

Merrill  v.  Souther 427 

Mcrritt  r.  Campbell 262 

V.  Putnam 106,  112 

Merry  v.  Bostwick 349 

Merry  v.  IluUett 352 

Mersereau  v.  Pearsell 258 

Mervine  v.  Parker 290 


Metcalfe's  Case 16 

IMctcalf  V.  Pulversoft 191 

Meux  V.  Anthony 193 

Metcalf  V.  Metcalf 61,  62 

iMcyer  v.  Butt 505a 

Michael  v.  Boyd 368 

Michaux's  Adm'r  u.  Brown 349 

Mickles  V.  Ilaskin 475 

Uicov.  Morris 218 

Middlesex  Bank  v.  Butman.  .219,  588 

Miiburn,  Ex  parte  324 

Mills  i;.  Bough 57 

Miles  V.  Caldwell 299 

V.  Jones    492 

V.  Williams 57,  58 

Miller  v.  Bank  of  B.  C 544,  545 

V.  Dungan 435 

V.  Earle 556,  557 

V.  Ewing 131,  155 

V.  Grice 529 

V.  Kershaw 195 

V.  Manice 2S4,  458 

V.  Mc]\Linns 252 

V.  Morse 485 

V.  Rhoads 184 

V.  Rice 505 

V.  Scare 530 

V.  Sherry 195,  197 

V.  Smith's  Ex 464 

0.  White 177,  450 

Milliken  v.  Whitehouse 177 

Mill  &  Co.  V.  Dickson 98 

Mills  V.  Duryee. ..  .451,  461,  559,  575 

t'.  Hoag  24 

V.  Martin 529 

Millspauch  v.  McBride 100 

Mims^^  West 194 

Miner  v.  Wallace 392 

V.Warner 350 

Minier  v.  Saltmarsh 448 

Minko  V.  McNamec   295 

Miukhart  v.  Hankler 51 

Minor  v.  Jlech.  Bank 43 

U.Walter 280 

Mitchell  V.  Allen 326 

V.  Huckett  422,  429,  463,  478 

V.  Hamilton 448 

V.  Hawley 524 

V.  Libbcy 236 

V.  Mayo 222 

V.  Mcnley 132 

V.  Robertson 295 

V.  Runkle 123 

Moaler.  Hollins 232 

Jlolyneux  v.  Seymour 573 

Monroe  i'.  Douglas 597 

Monroe  v.  May 355 

Montgomery  v.  Anderson 34 

V.  Andrews 475 

Montgomery  v.  Barnett 553 

V.  Byers 193 

V.  Carpenter 78 

V.Ellis 107,  114 

Moody  V.  Grant 72 

V.Harper 248,  368 


T.VELE   OF  CASES. 


XXXI 


Moody  V.  TownscncT 549 

Moomcy  v.  Miias 126,  15G 

Moor  V.  Ames 530 

u.  M.  C.Co 195 

Moore  v.  Bycrs 3G;{ 

V.  Dial 487 

u.DoValle 7'J 

V.  Douglas G12 

V.  Ellis 120 

V,  Gamble 48'J 

V.  Houston 1-0 

V.  Ireland 421 

V.  Janner's  Adm'r 608 

V.  Letchford 339 

V.  Spackmau 182,  573 

V.  Towle 439,  440 

Mora  V.  Zuzac 120 

Movan  v.  Jcssup 294 

Mordccai  v.  Lindsay 31 

Morgan  v.  IHiss  251 

V.  Burnett 131 

V.  Chester 236,  237 

V.  Nance 369 

V.  Plumb 2G0 

V-  Sims   360 

V.  Thorne 462,  499 

Morris  v.  Denton 502 

V.  Lucas 180 

V.  Mowatt 357 

V.  Ward 355 

Morrison  v.  Daphmau 72 

Morrison  v.  Freueli 3G6 

V.  Underwood 570 

r.Zciglcr 7 

Morrow  v.  Brenniger 348 

i;.  Weed 86,  522 

Morse  v.  Marshall 311,  329 

V.  Presby 120 

V.  Tappan 4,  140,  149 

Morton  v.  Grenada 480 

V.  Koot 17 

Mosbey  v.  Wall 281 

Moseley  v.  Cocke 141 

Mosely  v.  Sloscly    334 

V.  Tuthill 604 

Moses  V.  Bradley ; .  319 

V.  Julian 145,  146 

Mosher  v.  Heydrick 550,  551 

Mosly  V.  Wall  281 

Moss  V.  McCullough 177 

V.  Oakley... 177 

Mosseaux  v.  Brigham 109 

Moulin  V.  Ins.  Co ,,.„...  575 

Mower  v.  Hill 108 

r.  Kip 341,  392,464 

Mowry  v.  Chase 566,  571 

Moyer  v.  Ilinman 3u4 

Muir  V.  Craig 478a 

V.  Leitch.., 383 

Mulford  i\  Estudillo 475 

Mulholland  v.  Ilcynemafl lOli 

Mumford  v.  Overseers   ISO 

V.  Stocker 216 

Munn  V.  Sturgcss 565 

v.  Woriall 489 


Munro  v.  Allaire 321 

Murdoch  v.  Do  Vries 487 

Murdy  v.  Newman 499 

Murfee  c.  Carmack 370 

Murphy  v.  Longworth 4S2 

V.  Winter 566 

Murray  v.  Ballou 191,  194 

V.  Judson 553 

r.  Lilburn 428 

u.  Lovejoy  184,236 

Muscatine  t\  Miss.  K.  Pi,.  Co 489 

Myers  i".  Pogaly 347 

V.  Overton 126 

Myi-ick  V.  Selden 201 

N. 

Nardin  v.  Battle 479 

Nash  V.  Church 127,  307 

National  Bank  v.  Jaggers 154 

Nations  v.  Johnson 434,  569 

Neafie  v.  NeaQe 207,  329 

Neallr.  Hill 23 


Nealsv.  Jeter 21G 

Neil  V.  McMillan 57 

Neilsou  f.  Neilson 4S0 

Needham  v.  Brenner 159 

Nelson  i'.  Bagby 217 

V.  Crouch 223 

Neusbaum  v.  Keim 554,  557 

Nev.  &  Hac.  Canal  Co.  v.  Kidd. . .  79 
New  England  Bank  r.  Lewis.  . . .  259 
New  Jersey  Franklinite  Co.  v.  Ames, 

157,  173 
New  O.  &  C.  E.  Pt.  Co.  v.  Bosworth, 

153 

Newcomb  v.  Dewey 495,  4G8 

r .  Drummond .    .   407 

V.  Peck 560 

Newman's  Lessee  v.  Cincinuatti. .  .87 
V.  Chapman....  191,  203 

r.  Meek 492 

U.Wood 320 

Neyland  v.  White IG 

Niantie  Bank  v.  Dennis 356 

Nibblctt  V,  Scott ^  .  578 

Nichols  V.  Bridgeport 78,  79 

V.  Barton 232 

V.  Chapman 369 

V.  Hewitt 546 

V.  Kribs 554 

V.  Nichols 102 

Nicholson  u.  Patterson 487 

Nickleson  v.  Ingram 267 

Niles  V.  Batters'hall 43 

Nill  t'.  Comparet 328 

Noble  V.  Cope 327 

V.  Holmes 529 

Nodine  v.  Greenfield 306 

Noelr.  Wells 608 

North  r.  :Mudgo 232,  557 

i\  Pepper 59 

Norris  v.  Denton 553,  507 

U.Hume 507 


xxxu 


TABLE   OF   CASES. 


Nortbam  v.  Gorclon 427 

Norton  v.  Beaver 392 

V.  Birge 193,  201,  209 

V.  Diiberty ...312 

V.  Jamisou 153 

V.  Williams 3GG 

V.  "Wliituey 397 

Norwell  v.  ]McIIenry 8G 

Norwood  r.  Cobb 412,  5G3,  57G 

V.  Kenfield 121 

Novolli  V.  llossi 595 

Nowlun  V.  Geddes 2G7 

Noyes  v.  Butler 133,  503 

V.  Loeb 491 

Nuckolls  t' .  Irvin 103,  104a 

0. 

O.  &  M.  R.  R.  Co.  V.  Sbultz 517 

Oaldey  v.  Aspinwall 146,  233 

V.  Giles ..154 

Obencliain  v.  Comegys C9 

O'Bierue  v.  Lloj'd 210 

O'Brien  v.  Ileeny 159 

Ocbseubeiu  v.  Papelier 591 

O'Connor  t>.  Mullen   71 

Ocean  Ins.  Co.  v.  Fields 491 

Ochus  V.  Sbcldon 14G 

Oddy  V.  Bovil G14 

Odell  •-;.  Odell 499 

Oetgen  v.  Ross 299 

Offutt  V,  Offutt 2G4 

Ogden  t).  Larrabee 489 

Ogilvie  V.  Knox  Ins.  Co 3G 

Ogsbury  v.  La  Farge 270 

Olds  V.  Glaze 57G 

Orcntt  V.  Ranney , 570 

Ordinary  v.  McCIure 51 

V.  Wallace 336 

Orman  v.  Riley 121 

Orme  v.  Roberts SGGcf 

O'Rourko  V.  O'Connor 357 

Osborn,  Ex  parte 121 

Osborn  v.  Toomer 40 

Osborne  v.  Moss  334 

Osgood  V.  Thurston 441 

Osterhaut  v.  Roberts 237 

Outram  v.  Morewood,  249,  259,  234, 

293,  310 

Overall  ),'.  _-  ero 53a 

Overton  v.  Stevens 516 

Owen  V.  Boerum 320 

V.  Glover .,,.,„.  .476 

P. 

P.  F.  W.  &  C.  R.  R.  V.  Chicago. .  .48 

P.  M.  L.  Co.  V.  Chicago 77 

Packard  v.  Bird. 84 

V.  Hill   414,  45G 

V.  Smith 91 

Packet  V.  Sickles 273 

Paddock  v.  Comm.  Ins.  Co 3 

V,  Palmer 487 


Paddou  V.  Bartlett 70 

Page  V.  Benson 423 

V.  Freeman 236 

V.  McKec 572 

Pahlman  v.  Shuway 349 

Paine  v.  Gowden 433 

V.  Moorcland 12G,  3GG 

Palmer  v.  Davis 545 

V.  Hutchins 541 

-';.  Preston 337a 

Palsgrave  v.  Ross 09 

Pardon  v.  Dwire 517 

Park  V.  Casey  ...    4S9 

IViko  V.  Williams 411 

Parker  v.  Anderson     483 

V.  Homo  153 

V.  Hotchldss 311 

V.  Jackson 43 

V.  Jones 502 

V.  Legget ;iU 

V.  Pool 515 

V.  The  Bank 570 

V.  Thompson 274 

V.  Stan^Ush 310,  329 

V.  Walrod 529 

Parks  V.  Jackson 201,  3G4 

Parkhurst  v.  Sumner 18 J,  435 

Parri.sh  v.  Farrish 309,  279 

Parrott  v.  Den ,  ...    103 

Parsons  v.  Hoyt 3G0 

Partridge  t'.  Harrow GUOa 

Patterson  v.  Swan 474 

Pattison  v.  Jones    259 

Pattou  V.  Caldwell 184,  l-)9 

V.  Hammer 216 

Paul  V.  Whitman 181 

Pawling  V.  Bird's  Ex 559,  579 

Peabody  v.  Phelps 181 

Pearce  v.  Atwood 139 

V.  Gray 248 

V.  Olney 492 

V.  Thockeray 89 

Pcako  V.  Redd 101 

Pearl  v.  Wells 287 

Pearse  v.  Coaker ...  299 

Pease  u.  Clayton 590 

Poay  V.  Duncan    249 

Peck  V.  Strauss 126 

V .  Vandenberg 23 

V.  Woodbridge 834 

Pelham  v.  IMorcland 492 

Pelliter  v.  Freer 432 

Peltou  V.  Plainer 571 

Pemberton  v.  Pemborton 608 

Pendcrleath  v.  McGillioray 319a 

Pendleton  v.  Weed ' 133 

Penn  v.  Remseu 477 

V.  Tollison G04 

Pennington  v.  Gibson 434,  452 

Pennock  v.  Hai't .393 

V.  Monroe ^iO 

Penobscot  R.  R.  Co.  v.  Weeks.  .  .131 

Pentz  V.  Knester 304 

Pepin  V.  Lachonmcyer 604 

Peoijle  u.  Beebe , .  ,      .398 


TABLE  OF  CASES. 


XXXlil 


People  V.  Bradwdl ,  .121 

V.  Ciisscls 517 

V.  Ceiitnil  City  Bank 121 

V.  Cliisbolm 475 

V.  Couuelly 201 

V.  Dawell   580 

V.  DcCarillo 5:J5 

V.  Do  ki  Guerra 1 IG 

V.  Downiug 132 

V.  IIjpsou 475 

V.  Johnson 271 

V .  Morcein 32'J 

V.  O'Conuell IDO 

V.  C'Neil 121,  137 

V.  Riins 108,  112 

V .  Sanchez 121 

^1.  Smith 200 

V.  SUirtevaut 435 

V.  Supervisors 531 

V.  Vilas 261,  2G5 

V.  Warren 529 

Pepin  V.  Lacheniueyer 148 

PcpiDer  ';.  Dunlap 34 

Percy  v.  Clary 227 

V.  Foote 259 

Perdue  v.  Bradshaw 74 

Perine  v.  Dunn 270 

Perkins,  Ex  parte 324 

Perkins  v.  Fourquinet 27 

V.  Mooro 267 

U.Parker 274,  329 

V.  Perkins 62,  253 

V.  Walker 460 

Perrine  v.  Serrell 312 

Perry  v.  Meddowcraft 610 

V.  Wilson 57 

Peters  u.  Diossy 261 

V.  Li'ai^ue 496 

V.  Sauford 229 

V.  Spitzfadeu 154 

Petrie  v.  Nattall 159,  319 

Pettes  V.  Bank  of  Whitehall 485 

Pettigrew  v.  Mayor  of  N.  Y Ill 

Pettit  V.  Shepherd 394 

Potty  wit  V.  Kellogg 604 

Peyroux  v.  Peyriux 131 

Pfeltz  V.  Pfeltz 3J7 

Phelan  r.  San  Francisco 481 

Phelps  V.  Brewer 574 

n  Sill 530 

V.  Tilton 413 

V.  Phcebe,  The 248 

Phillips  V.  Allan 599 

V .  B^'rick 274 

V.  Eyre  599 

V.  Ilunter  .159,226,"  286^  288, 

592 
Phillipson  v.  Earl  of  Egremont . .  99, 

436 

Philson  V.  Bamfield 231 

Phinney  i'.  Jiarnes 239 

Pickens  i'.  Mario w 475 

V.  Varborough 163,  502 

Pickett  r.  Stewart 505 

Pico  V.  Webster    1G4 

3 


Pierce  v.  Adams    79 

I'iercy  c.  Sabiu 458 

Piter  u.  Ward 361a 

Piggott  V.  Addicks 498 

Piko  V.  Hill 95 

Pillow  r.  Elliott 261 

Pillsbury  v.  Dugan 124 

Pinson  V.  Ivey 607 

Piper  t'.  Pearson 530 

Piquet  V.  McKay 284 

Pitlield  V.  Gazzam 484 

Pittnian  v.  Lowe . .  .72 

Pitta  V.  FuQ-ate. 180,  216 

Place  V.  Butternuts  Manf.  Co.  . .  .144 

Pleasants  v.  Clements 312 

Plicquo  V-  Perret  .    258 

Plumnier  u.  Douglas 557 

V.  Woodburno 4G0 

Polhemus  V.  Perkins 55 

Polk  V.  Pendleton 449 

Pollack  V.  Gilbert 281 

Pollard  V.  Baldwin ,563 

V.  Baylors 295 

V.  Cocks 36G,  403 

V.  Wegener 133 

Pond  V.  Davenport 553,  557 

V.  Doneghy 151 

V.  Makepeace 163 

Ponder  v.  Cox 485 

V.  Mosely 116 

Pool  V.  Loomis ' 57 

Pope  V.  Dinsmore 538 

Poorman  v.  Crane 570 

V.  Mitchell  249 

Porter  i'.  Earthmau 369 

11.  Ennis 483 

V.  Hermann 537,  540 

V.  Hill 312 

V .  Ingram 476 

V.  Liscom 427 

V.  Eobinson 151,  513 

Portfield  V.  Butter 135a 

Portiugton's  Case 293 

Post  V.  Coleman 551 

V.  Neafie 434 

Potter  i;.  Baker 310 

•     V.  Mech.  Bank 124 

Poultncy  V.  Treasurers 95 

Powell  V.  Boring 502 

V.  Cyfers 494 

V.  Knox 348 

V.  Washington 153 

V.  Wright 195 

Powers'  Ex.  v.  Butler's  Adm 486 

Powers  V.  Heath's  Adm 162 

Pratt  V.  Dow 132,  439 

V.  Jones 432,  474 

V.  Northam 491 

Prentes  v.  Commonwealth 496 

Prentiss  v.  Hiuton   476 

r.  Holbrook 186 

Prcslar  v.  Stallworth 417,  472  , 

Preston  v.  Clark 135,1 

u.  Tubbin.... 191,  202!; 

Price  u.  Boyd 478*j 


XXXIV 


TABLE   OF   CASES. 


Price  V.  Dewhurst 591,  COl 

V.    Griliiu 1'25 

V.  nickok 50-4,  570 

V.  Higsins 228 

V.  Ward 499,  5G3 

Priest  V.  Whoelock 393 

Pritcbell  i'.  Clark C59 

Providonco  Tool  Co.  v.  Prader. .  .553 

Pruiltv.  Eruitt 89 

Public  Vv''orks  v.  Columbia  College  574 

Puckett  V.  Pope 155 

Pullviau  V.  Christian 27 

Purdy  V.  Doyle 3^8 

V.  Upton 551 

Purviancc  v.  Lemmon 3G3 

Pyke  V.  Crough 172 

Q. 

Quackenbush  v.  Leonard 24 

Queen  Anne's  Co.  v.  Pratt 3Gla 

Quiuu  V.  Wctherbee 508 

Quivcy  V.  Baker 130 

R. 

Kabun  r .  Shortbridge 503 

Kadenhurst  v.  Reynolds 72a 

Kae  V.  Ilnlbert 4 

V.  Lawser 558 

Kagan  v.  Cuyler 481 

Hail  11.  Co.  V.  Gates 108 

V.  James 351 

V.  Wynne 575 

Balston  v.  Bell 403 

V.  Field 367 

V.  Lalice 151 

Eamsey  v.  Ilerndon 259,  272 

Eiind  )'.  Nutter 234 

Randolph  v.  Keiler 559 

PLangcly  v.  Webster 219,  565,  570 

Eaukin  v.  Barnes 575 

V.  Goddard 588,  591,  597 

t;.  Scott 339,  377 

Eansley  v.  Stott 294 

Eansom  v.  City  New  York 104 

V.  Keyes 379 

Eanston  v.  Lahee 513 

Eapo  t'.  ricaton 133,  5G3,  571 

Eapelye  v.  Prince 17G,  184 

llatcLff  r .  IJald win 113 

Eaun  I'.  Eeynolds 482,  540 

Eavee  v.  Fanner 322 

Eawson  v.  McJunkin 427 

Bay  V.  Connor 70,  325 

V.  Law 27 

V .  Thompson 601 

Eaymond  v.  Ilolburn 39iJ 

V.  Merchant 245 

Eeamcs  v.  Kearns 146 

Eead  v.  French 554 

Eeading  r.  E  -ading 553 

Eeber  v.  Wright 412,  564 

Eedmoud  v.  Coffin 284 


Redwood  i-.  Coffin 159 

Eeed  V .  Calderwood 329 

V.  Elder 583 

V.  Eldridge 3 

V.  Ilarvcy 491 

V.  Jackson 419 

V.  Pratt 128 

V.  Pruyn 4G9 

V.  Wiight    120 

Reeder  v.  Duncan's  Adm'r 535 

V.  Bergert 222 

Eeese  v.  Holmes GO? 

Reeve  v.  Kennedy 509 

Eeeves  v.  Cooper 51G 

Regina  v.  Barton 325 

V.  Brightside  Bierlow  ...  .419 

V.  Hartington 25G 

V.  Yorkshire  2f/0 

Reid  V.  Boyd 453 

I).  Case 80 

V.  Ilibbard 463 

V.  Ross 4-1 

I'.  Spoonable 524 

Reily  v.  Lancaster 130,  135 

Reimers  v.  Druce 591 

Eclfe  V.  McComb 368 

Eelyea  v.  Eamsey 524 

Eenouil  v.  Harris 87 

Respublica  v.  Davis 180 

Eevillu.  Pettit 530 

Rex  V.  Clayton 520 

V.  Clegg 5-0 

V.  Grundon 531 

V.  LoUey.    6i0 

V.  reckham 520 

V.  Sheriff 238,  239 

V.  Venables 520 

V.  Wade 47G 

V.  Woolfe 476 

Reynolds,  Ex  parte 162,  324 

Eeynolds  v.  Fenton 455 

V.  Ilorine 487 

V.  Harris 427,  482,484 

V .  Hosmer 482 

V.  Orvis 521 

V.  Eeynolds 279 

V.  Roger's  Ex 479 

V.  Stausbury 124,  458 

Rhoads  v.  Commouwealth 62 

Rhoades  r.  Sherrod 72 

Rhodes'  Lessee  v.  Belin 249 

Ricer.  King .  ..311,  317 

V.  Morton 226 

V.  R.  R.  Bank 5GOo8 

Richards  v.  Kilf 132 

r.  McMillan 557 

V.  Watson 182 

Richardson  v.  Ainsworth 426 

u.  Fuller 515 

V.  Hickman 454 

I!.  Hunter 120 

V.  Jones 94 

V.  Stewart 295 

7,'.  White 212 

Richmond  v.  Shippen 500cf 


TABLE  OF  CASES. 


XXXV 


Richmond  v.  Taylcnr 513 

llicketson  v.  riicbardson 527 

E-itcli  I'.  Eicbelberger 400n 

Eicliter  v.  Selin 35G 

Eiddlc  V.  Baker  -t.OS 

Eidgo  V.  Alter 499 

V.  Pratber 3i;7 

Kidgely's  Ex.  v.  Gartell 3G7 

Eidgeley  v.  Spencer 251 

Eidgeway's  Appeal 343 

Eidgeway  ';.  IJank  of  Tenn 4'J5 

Eiggc  x\  Burbridge 277 

Eiggs  V.  Collins 131 

Eiicy's  Adm.  v.  McCord's  Adm. .  398 

Eiley  v.  Wangh 131 

Eing,  i'a;  parte 324 

Eitter  v.  Henshaw 478 

Eoads  V.  Bymmes 367 

Eobbr.  Eobb 93 

Eobbins  v.  Chicago 181 

V.  Harrison 238,  277 

V.  Eobbins 3Glct 

V.  Wells 2GG 

Eoberts  v.  Caldwell 5G0 

r.  Eobeson 25G 

Eobertson  v.  Barbour C08 

V.  Bergen 113 

V.  Smith 453 

V.  Stowers 117 

V.  Struth 22(J 

V.  Wright 1G3 

Eobeson  v.  Eoberts 427 

Eobins  v.  Dolphin ..•:..  GIO 

Ejbinsou's  Case 15G,  293 

Eoblnson,  /n  re 337rt 

Eobiuson  v.  Commissioners GO 

V.  Howard 2G7 

V.  Jones  ...    G18 

V.  Morse 322 

V.  Prescott 577 

I".  Ward 573 

V.  Weeks 425,  426 

V.  Wiley 277 

Eobson  V.  Cranwell ICO 

V.  Eaton 499 

Eobnck  v.  Harkins 502 

Eockhiil  V.  Hauua 279^  370,  374 

Eockland  Water  Co.  v.  Pillsbury .  72a 

Eockwell  V.  Brown 241 

V.  Laugley 27G 

Eodgers  v.  Bonner 338 

Hoe  V.  Swart 39  i 

Eogers  v.  Bradford 70 

I'.  Brent 348 

V.  Burns 574 

V.  Goswell IG 

V.  Graunis 163 

V.  Gwinn 492,  57G 

V.  Haines 173 

V.  Higgins   260 

V.  Odell    221,  452,  575 

V.  Rogers 70,  73 

11.  Tucker 30'" 

Eohr  V.  Davis 43 

Eoland  v.  Kreyenhagen  106 


Eollins  V.  Forbes  401 

Eoosoveltu  .  Kellogg 524 

Eoot  I'.  Curtis 373 

V.  Dill 231 

V.  McFcrrin 518 

Eoraback  c.  Stebbin 545 

Eose  V.  Himely 614 

V.  Lewis 319a 

Eoss  V.  Duval 404 

V.  Grange 90 

Eosse  V.  Eust 270a 

Eosser  v.  Bingham 206 

Eowe,  I'Jx  parte 137 

Eowe  V.  Chandler 43 

V.  Smith 2S5 

Eowland  v.  Lerbj' 401 

Eowley  v.  Howard 517,  521 

Eudy  V.  Ulrich 319a 

Euby  V.  Grace 45 

Eugg  V.  Parker 63,  G7,  72 

Eupert  V.  Dautzler 394 

Eush  V.  Halsyon 558 

Eussell's  Appeal 348 

Eussell  V.  Drummond 78 

V.  Houston 348 

v.McDougall 72 

V.  Slaton 487 

V.  Shule 216 

Eust  V.  Ware 506 

Eutherford  v.  Fisher 34 

Euttan  V.  Levisconte 3G0 

Eyan  u.  Doyle 128 

Eyan  v.  Vallandingham 567 

Eyghtmire  v.  Durham 58 

•    s. 

S.  p.  Co.  V.  Sickles QQ 

Sabins  v.  McGhee. '. 311 

Sackett  v.  Giles  361 

Sadler  v.  Eobins 434 

Sage  r.  Harpending 328 

V.  Matheney 44 

V.  McAlpin 257 

Sager  v.  Blain 265 

U.Nichols 43 

Saint  Albans  v.  Bush 132 

Salladay  v.  Bainhill 517 

Salmon  v.  Price 478 

Saloucci  V.  Woodmass 618 

Same's  Appeal 3S9 

Sampson  u.  Ohleyer. ..  .162,  171,  181 

213 

Samuel  v.  Dinkins 1G9 

V.  Judin 16 

San  Antonio  v.  Lane 253 

Sanborn  v.  Fellows 517 

Sanchez  v.  Carriaga A  ■  ■  •^^'^ 

Sanderson  v.  Caldwell ^38,  237 

V.  McGowran 353 

Smford  v.  McLean. . .  .331a,  468,  470 

San  Francisco  v.  S.  V.  E.  E 248 

Sarton  v.  Smith   72 

Satterlee  i'.  Bliss 171,  301 

Savage  u.  Hussey 135 


XXXVl 


T.VELE   OF   CASES. 


Savage  v.  "Walshe 45 

Siiwycr  c.  Woodburj' 27G 

Schi'bsby  v.  Wosteubolz HSS 

Schiudel  v.  Suman 2G1 

Schloss  I' .  White GJT 

Sebiniat  v.  Zahenscloif 247 

Schucpf,  Lire 337a 

School  Dist.  V.  Eood 95 

Schoonmaker  v.  Cleai-water 140 

Schroeder  v.  Fromme 544 

Schurmeycr  v.  Johusou 251 

Scott  V.  Coleman 505 

V.  Colmesnil 232 

V.  Harkins 427 

V.  IMkington 595,  GOl 

V.  Pleasants 135 

Scriba  i'.  Deans   339 

Scribner  v.  Hickok 472 

Scroggins'  Admr.  v.  Scroggius.70,  71 

Scudder  v.  Van  Amburgh 191 

Sears  y.  Terry 517 

Sebbins  v.  East  Society 555 

Secombe  v.  Steele  193 

Second  Ward  Bank  v.  Upman. .  .235, 

32G 

Secor  V.  Sturges 239 

Seddon  v .  Tutop 272,  274 

Sedgwick  v.  Cleveland 208 

Seevers  v .  Delashmutt  3CG 

Segeo  11 .  Thomas 131 

Selin  V.  Snyder 131 

Sellers  v.  Corwin 405 

Sellick  V .  Adams 321 

Semplc  V.  Ware 332 

V.  Wright 330,  332 

Sergent's  Heirs  v.  Ewiug 1G3 

Sevies  v .  Eodde 574 

Shaeffer  v.  Weed 3Gla 

Shafer  v .  Scuddy 272 

V .  Stonebrakcr 284 

Shannon  v .  Frost 531 

Sharinau  v .  Morton 559 

Sharp  V.  Brunnings 132 

r .  Daugney 83 

■U.Gray 23G,  237 

V .  Lumley 193 

r.  Mayor  of  N.Y 508 

V.  Spreckenyle 379 

Shaw  V .  Attorney-General  GIG 

■u.  Beers 239 

V.  Davis 529 

V.Gould GIO 

V.  Hurd 413 

V .  McGregor 93 

U.K.  R.  Co 157 

Shawhan  v .  Loffer 132 

Shear  v.  Flint 95 

Shearm^  v.  N.  Y.  Cent.  Mills. . . .  17 

Shears  uf  Dnsenberg 303 

Sheehy  v.  Mandevillo   230 

Sholdin  t'.  Wright 524 

Sheldon  u.  Alcox 283 

V.  Buskirk 529 

r.  Edwards 2G8 

V .  Hopkins  461 


Sheldon  v.  Kibbo 23C 

V.  Newton 118 

i;.  Shelly 's  Appeal 338 

Shelton  v.  Johnson 210 

v.Triffin 129,  499,  509 

Shcpard  v .  Eowe 474 

Shepherd  v .  Baillcaii 394 

V.  Brentou   56 

t>.  Mayor  of  N.  Y 222 

V.  Shai-p 16 

Sheridan  v.  Andrews 299,  213 

Sheriff  of  Middlesex's  Case 137 

Sherman  i'.  Brett  407 

V .  Boyce 469 

V.  Dilley 302 

Sherrill  v.  Qoodrum 117 

Shew  V .  Jones 339 

Shields  v.  Miller 127 

Shinkle  t'.  Letcher _.  .493 

Shirley  v .  Fearne  1G5,  175 

V.  Watts 512 

Shiveley  v.  Jones 203 

Shiver  v.  Shiver 89a 

Shivers  v.  Wilson 123 

Shoemaker  v.  Brown 524 

Short  V .  Kellogg 62 

Shotteukirk  v.  Wheeler 4S7 

Shotwell  V .    Lawson 193 

V.  Murray 377 

Shricker  v.  Field .'-CO 

Shroi^shiro  v.  Probate  Judge 319a. 

V.  State 145 

Shufelt  V.  Buckley 517 

V.  Shufelt 512 

Shuford  V.  Cain 98,  135 

Shumway  i'.  Stillman 562 

v.Stillwell 461 

Sibbald,  Ex  parte 248 

V.  United  States 121 

Sidensparker  v.  Sidensparker. . .  .336 

Sigourney  v.  Libley 146 

Silver  Lake  Bank  v.  Harding 577, 

597 

Simes  v .  Zane 240 

Simmons  v .  Clark 575 

V.  McKay 151 

V.  Price 481 

Simonds  v    Catliu 484 

Simons  v.  De  Bare 518 

Simonton  v    Barrell 477 

Simpson  v.  Brewster 270a 

V .  Cochran 432 

V.  Fogo 588 

V.  Hart 511 

V.  Horubcck 104?>,  482 

V.  Jones 159 

V .  Norton 319a 

V .  Pearson 159 

Simson  v.  Hart .   325 

Skepworth  o.  Cunningham 3G9 

Skillman  v.  Greenwood 124 

Slack  V.  Moody 502 

Slee  t' .  Bloom 177 

Sloan  V .  Creason 236 

Sloo  V.  Lee 232 


TABLE   OF   CASES. 


XXXVll 


Smalley  v.  Edey 27G 

Small's  Appeal 370,  372 

Smart  v .  Mason 333 

Smith  V.  Alexander 237,  4U9 

V.  Black 231,  232 

t;.  Bowker 151 

V.  Brackett 355 

V .  Bradley 1"26 

V .  Campton 184 

V.  Claimants 1G2 

V.  Coe 32G 

V.  Elliott 284 

V .  Ferguson 151 

V.  Henderson 334 

V .  Holmes 80 

V .  Hughes 475 

V.  Ingles 318 

V.  Johnson 320 

V.  Jones 238 

V.  Kelly 289 

i; .  Kernocher 248 

V .  McCluskey 286 

V .  McDonald 151 

V.  Meredith 395 

V.  Millikiu 453 

V .  Mumf ord 432 

V .  Newland 88 

V.  NichoUs 215,  220,  455 

V.  Patten 154 

V.  Pomeroy ]24,  133 

V.  Powell 503 

V .  Rines 23o 

V.  Sherwood 257,  273,  295 

V.  Smith 237,456 

V .  Spalding 325 

V.  State 121 

u.  Talbot 274 

V.  Trabue's  Heirs. 36,  171 

V.  Way 241 

V.  Whiting 272 

Smock  V.  Dade 95,  4G3 

Snead  v.  McCoul 339,  379 

Snelling  v.  Parker 3S2 

Snyder  r.   Robinson 7 

V.   White 325 

Society  v.  Hartland 154 

Sohier  v.  Merrill 532 

South  Fork  Canal  Co.  v.  Gordon. 483 
Southside  R.  R.  C.  v.  Daniel  272,  274 

Sorrel  v.  Carpenter 191,  '^02 

Spafifard  v.  Beach 474 

Spalding  v.  The  People 324 

r.  Wathen 150,  152 

Spanagel  v.  Delliuger 85 

Sparhawk  v.  Wills 233 

Spaulding  v.  Baldwin 124,  452 

V.  Cougdon 58 

V.  Swift 95 

V  V.  Thompson 112 

Spencer  v.  Brockway. .  .217,  570,  575 

V.  Dearth   253,  416,  419 

V.  Vigneaux 250 

Spooner  i' .  Davis 257 

Spradling  v.  Conway 274 

Jjprague  v.  Jones  70 


Sprague  v.  Oakes 159 

Spicer  u.  U.  3   2G7 

Springfield  u.  Worcester 57,  65 

Spring  Garden  Commr's  Appeal  .386 

Stacy  !'.  Thrasher 163 

Stafibrd  v.  Clark 260,  272,  458 

v..  McMillan 114 

Stahl  V.  Roost 398 

Stahl  V.  Webster 69 

Staker  v.  Cooper  Co.  Court 

Stalling  V.  Gully 133 

Stanard  v.  Rogers 503 

Staudish  V.  Parker 275,  310 

Stanhope  v.  Firman 499 

Stannis  v.  Nicholson S63 

Stanton  v.  Styles 517 

Starbird  v.  Eaton 79 

V.  Moore .... 95 

Starbuck  v.  Murray. . .  .133,  4G1,  5G3 

Starr  i'.  Hochart 489 

V.  Stork 309 

Staples  V.  Goodrich 238 

Starke  v.  Woodward 248 

State  V.  Ailing 148 

V.  Anone 148 

V.  Augusta 531 

V.  Borden 131 

V.  Castleberry 116 

V.  Cinn.  Gas'Co 170 

V.  Clark 72 

V.  Colerick 180 

V.  Comm.  Bank 7 

r.  Crow 529 

V.  Elgin 130 

V.  Fosdick 120 

V.  G.  W.  R.  W.  Co. . . .  240,  241 

V.  Harrison , 89 

V.  Helmer 217 

V.  Hiuchman 571 

V.  King 72 

V.  Knight 121 

V.  Little 318 

V.  Mayor  of  Mobile 62 

V.  McAlpin 63 

V.  McArthur 14 

V.  McGlynn 319a,  608 

V.  Morton „ 273 

V.  Richardson 476 

V.  Salyers 480 

V.  Treasurers 90 

V.  Virgin 464 

V.  Wheeling  Bridge  Co 90 

V.  Woodlief 537 

State  Bank  v.  Arnold 459 

State  Sav.  Inst.  v.  Nelson. 96 

Steamboat  v.  McCraw 1G6 

Stearns  v.  Aguirre 481,  533 

Steel  V.  Smith 574 

Steele  u.  Lineberger 163 

V.  Palmer . .  135a 

V.  Smith 564,  574 

■U.Taylor 193,  3G7,  208 

Steenu.  Steen 124,  133 

Steere  v.  Tenney , 604 

Stephen's  Appeal 367 


XXX  VI 11 


TABLE  OF  CASES. 


Stephens  v.  Gaylord 458 

V.  Jack 186 

V.  Eoby 453,  45'J 

V,  Wilson 72 

Stephenson  v.  Nowcomb 132 

Steptoe  ?'.   Read 43 

Stevens,  IJx  parte 390 

V.  Hughes 257,  310 

V .  Mangum 122 

V.  llosg 540 

Stewart  v.  Goode 7 

V.  Gray 413 

y.  Montgomery 1G3 

V.  Peterson 432 

V.  State 318 

V.  Stebbins 2-33 

V.  Thomas 181 

Stickney  v.  Davis 90 

Stiles  V.  Burch 319rt 

V.  Kuapp 487 

r.  Murphy 307 

Stitpheu  V.  Houdette 313 

Stinson  v.  Ross 481 

Sockbridge  v.  West  Stockbridge.  .407 

Stockdale  v.  Hansard. ...  137 

1'.  Johnson 72 

Stockton  V.  Briggs 487 

Stoddard  r.  Myers 199 

V.  Thompson 174 

Stoetzell  V.  FuUerton 153 

Stokes  V.  Knarr 493 

V.  Sanborn 432 

Stone  V.  Connelly 199 

V.  Elliott 194 

V .  Lewman 492 

V.  Sherry 495 

V.  Wood 103,  358 

Stoner  v.  Neff 305 

Story  1.1.  Kimball 55 

Stoutenbergu.  Vandeuburgh 515 

Stover  V.  I)unn 476 

Stowell  V.  Eldred 50'6,'507 

Stoytl  V.  Cady 478 

Strader  v.  Bird's  Heirs 323 

Street  v.  Brackley 575 

u.Ins.Co 015 

Striker  v.  Kelly 123 

Strode  v.  Broadwell 470 

StrothcT  V.  Butler 270 

Stroud  u.  Casey 484 

Struble  v.  Malone 401 

Stuart  V.  Lander 4,  432 

Stubbs  V.  Leavitt 495 

Sturdy  v.  Jackaway 299 

Sturdiivant  v.  Pike 572 

Sturlevant  v.  Randall 159,  281 

Stuyvesant  v.  Hall 201 

V.  Hone 201 

V.  Mayor  of  N.  Y 240 

Stymets  v.  Brooks 309 

Sullenberger  v.  Gist 7 

Summers,  Ex  parte 137 

Sumraersettu.  Summersett's  Ad.     72 

Suydam  v.  Barber 221,  231,  575 

V.  Cannon 232 


Swain  v.  Naglee 01,  72 

Swan  V.  Saddlcmire 480 

Swaun  V.  Broome 139 

Swartz  V.  Stees 359 

Ssvayne  i'.  Lyon 150 

Sweet  V.  Jacocks 349 

V.  McGlynn 113 

Swift  V.  Starke 574 

T. 

Tabb  V.  Williams 194 

Tabler  v.  Wiseman 204 

Taggart  v.  Wood 485,  498 

Tallmadge  v.  Chappel 217,  450 

Talluum  v.  Farley 357 

Tamer  v.  Hague 476 

Tarns  V.  Bullitt 107 

Tapp  V.   Rankin 502 

Tarbox  v.  Hayes 540a 

Tarleton  v.  Althusen 227 

V.  Cox 153 

V.  Johnson 182,  183 

Tarver  v.  McKay 506 

V.  Tarver 487 

Tate  V.  Anderson 478 

Tate's  Ex.  v.  Hunter 174,  272 

Tatlock  V.  Harris 319 

Tayloe  v.  Thompson 339 

Taylor  v.  Alexander 529 

t'.  Barron 577 

V.  Beck 577 

V.  Boyd 205 

V.  Boyden 597 

V.  Brushcup 517 

V.  Bryden 559 

V.  Castle 257,  259 

V.  Cornelius 349 

V.  Dryden 575 

V.  Diistin 184,250,  273 

r.  Larkin 260,201 

V.  Lusk 90 

V.  Root 217 

V.  Runney 474 

V.  Runyan 512,  575 

V.  Shew 433 

V.  Smith 333 

V.  Waters 379 

V .  Yarborough 270 

Teetor  v.  Abden 423 

Tenny  i\  Townsend 565 

Terriil  r.  Higgs 281 

Terry  i\  Huntingdon 529 

Tossier  u.  Wyse 449 

Thatcher  v.  Gammon  . .  .95,  217,  286 

v.Haun 108 

U.Powell 123 

Thayer  v.  Mowry 291 

V.  McGeo 86 

The  Flad  Oyen    014 

The  Mary 617 

The  Palmyra 34 

The  Phoebe 248 

The  York  Bank's  Appeal 557 


TABLE   OF   CASES. 


XXXIX 


Thomas  v.  Cleveland 475 

t;.  Hubbell 18;) 

V.  Keunedy 363 

V.  Mohler 221 

V.  Perryman i'6'-\ 

V.  riatts 171 

V.  Porter 553 

V.  Kumsey 231 

I'.  Simpson 348 

V.  Sterns 1C2 

V.  Southard Oil 

V.  Tanner 80,  413 

Thomassou  r.  Odiim 7,  45 

Thompson  v.  Bristow 47u 

V.  Browu 157 

V.  Emmert.  .459,  559,  5G0, 
573 

V.  Hall 295,  2')7 

V.  Hyatt 32 

V.  Lee  County 578 

V.  Mankiu 154,  441 

V.  Manrow 154,  441 

V.  McKay 272,  £93 

V.  MultanomahCounty517 
524 

V.  Percival 46  / 

V.  Pienoe 155 

V.  Roberts 1(31) 

V.  Piogers 241 

r.Tho  State 584 

V.  Thompson 405 

V.  Van  Vfctchen 554 

Thrasher  v.  Haines 189 

Thorne  v.  Cooper 272 

Thornton  v.  Lane 140 

Thurmond  v.  Durham 507 

Thurston  v.  Slatford 407 

V.  Spratt 180 

V.  Thurston 270,  313 

Tilfourd  v.  Oakley 434 

Tillotson  V.  Mdlard 355 

Tilton  V.  Gordan 283 

Timnis  v.  Grace 004 

Tinney  v.  Woolston 357,  3S4 

Tobin  u.  Eddisou 530 

Toby  V.  Brown 223 

Todd  V.  Cumb 4 

Tolen  V.  Tolen 579 

Tooker  v.  Duke  of  Beaufort 58 

Torrey  v.  Pond   158 

Towe  V.  Felton .472 

Tower  v.  White 303 

Towle  u.  N.  H.  N.  Co 241 

V.  Towb   180 

Town  V.  Lamphere 271 

V.  Smith 272 

Town  of  Omro  v.  Ward   108 

Towns  V.  Nims 256 

Townsend  v.  Chew 90 

V.  Cox 435,  513 

V.  Griffin  586 

V.  Kerus 334 

V.  Smith 478 

Tracy  v .  Goodwin 180 

V.  Tracy 392 


Trammell  v.  Trammell 70 

Trapnall  v.  Piiehardsou  394,  405,  474 

Trask  v.  R.  ll.  Co 241 

Travis  v.  Waters 24 

Treadwell  xk  Herndong 358 

Treasurers  v.  Bates 231 

Trescott  v.  Baker 322 

V.  Lewis 255 

Trimble  v.  Boothby 203 

Triplett  v.  Scott 437,  402 

Troup  V.  Wood 389,  405,  475 

Troy  V.  Smith 418 

Truett  V.  Legg 2 

'  V.  Wainwright 499,  511 

Trnitt  !,'.  Truitt 193 

Trumbull  v.  Nicholson 463 

Truscott  I'.  King 397,  406 

Trustees  v.  Watson 337 

Tucker  v.  Rohrbock 252 

Tudor  V.  Taylor 478 

Tufts  V.  Tufts 392,  394 

Tunstall  v.  Robinson 459 

Turner  v.  Felgate 104a 

Turner  v.  Ireland 122 

V.  Roby 454 

Turpin  v.  Thomas 181,  487 

Tutt  V.  Cousius 87 

Twogood  ?'.  Franklin 482 

Tyler  r.  Hyde     194,   270 

D.Walker    495 


u. 


Underwood  v.  Sledge 90 

Union  Bank  v.  Hodges 232 

V.  Menard 338 

United  States  v.  Arredoncio  .118,  249 

V.  Butler 352 

V.  Cushman..  235,  259, 
433 

V.  Dashiel 475 

V.  Duncan 378,  405 

V.  Gamble 79 

V.  Halstead 403 

V.  Hoyt 229 

V.  Klein 90 

V.  Knight 93 

V.  Morrison..  .339,  403 

V.  Shoemaker 318 

V.  Trofton 232 


V. 

Vail  V.  Connut   403 

Valentine  v.  Havener   366 

V.  Mahoney 109,  174 

I'.  Norton      79 

Vallandingham  v.  Ryan  267,  273, 

284 

Vallejo  V.  Green 103 

Vallie  V.  Dumerque 590 

Van  Cleve  r.  Groves   348 

Van  Duzen  v.  Livett 518 


xl 


TABLE  OF  CASES. 


Vau  Duzer  v.  Van  Duzer 361 

Van  Metre  v.  "Wolf loO 

Van  Ness  i\  Corkius 4) 

Van  Rensselaer  v.  Kearney 247 

V.  Sheriff 325 

Van  A'ecbten  v.  Terry 157 

Van  Vliet  v.  Olin 2C0 

Vance  v.  dinger 46 J 

Vanderliayden  v.  Young 5_3 

Vanclcipoel  x\  Van  Vallveubergh  .6.  8 

Vuqueliu  v.  Bouard 217 

Vassr.  Ball G18 

Vatber  v.  Zane 504 

V.  Ly tie's  Ex 478 

Vaugn  V.  Johnson 487 

Vcghte  V.  Iloaglaud 24 1 

Veruon  v.  Valk 163 

Vierheller's  Appeal 3G5,  375 

Vighers  v.  Aldrich 379,  476 

Vilit).  Westo 431 

Vilas  t'.  Jones 485,  502 

Vischer  v.  Yischer 57'J,  583 

Voght  V.  Tickuor 418 

Vooght  V.  Winch  284 

Voorhets  ;;.  Gros    475 

Vose  V.  Morton   337 

Vredenberg  v.  Morris ,  „ .  353 

V.  (Snyder 443 

w. 

W.  A.  &  G.  S.  P.  Co.  V.  Sickles.  .273 

Waddell  V.  Wood 115 

Wade  V.  Deray 304 

r.  Judge 324 

Wash.  Ben.  So.  v.  Bacher 531 

Wakemau  i\  Jones 4G3 

Waldeii  V.  Bodiey's  Heirs  .  .193,  klOn 

Wales  V.  Bauli  of  Mich 501) 

r.  Lyon 249 

Walker  v.  Chase 253,  273 

U.Clay 152 

V.  Davis   265 

V.  mil's  Ex 214 

x\  Lalhrop 5Li5 

V.  Mescley 518 

V.  Moody 357 

V.  Penyman 17Ja 

V.  Piobbius 495 

V.  llogan ]  47 

V.  Smalwood 19 1 

V.  Wills 7'.) 

V.  Witter 592 

Wallace  v.  Eldiidge   510 

Wallin  V.  Iluff 171 

Vs^allis  V.  Thomas 72« 

Walrod  (•.  Shuler 53 

Walton  V.  McKesson 432&,  407 

1'.  Sugg 566 

Wamburgh  v.  Gates 484 

Waan  v.  McNulty 231 

Wauzer  v.  Howland 523 

Ward  V.  Barber 132 

V.  Chamberlain.  .403,  404,  406 


Ward  V.  Hollister 484 

u.  Jolinson . .  .231 

V.  McKeuzie 574 

V.  Prather's  Adm 447 

Warden  v.  Eden 428 

V.  Mason 371 

Warden  v.  Bailey 236 

V.  Tainter 153 

Ware  v.  Pennington 46 

Warfield's  Will 407 

Wartield  v.  Holbrook 320 

V.'ariug's  Heirs  v.  lleyuolds 151 

Waring  v.  Waring 195 

Warner  v.  Blakeman 489 

V.  Helm     47S,  478« 

Warren  v.  Comings  . . .  .238,  2i0,  458 

V.  Flagg 577 

V.  Kiugsmill 578 

V.  Lusk 560 

V.  McCarthy 434,  565 

V.  Shuinan 16 

Warwick  v.  Underwood  247,  284,  310 

Wash.  Ills.  Co.  V.  Price 144,  145 

Waterbury  v.  Graham 231 

Waterhouse  v.  (Jousins 523 

Waterman  v.  Haskin 374 

Water's  Appeal 367 

Watkins,  Ex  parle 135 

Watkyus  v.  Abrahams 545 

Watson  V.  Hahn 408 

V.  Owens 229,  232 

■u.  Beissig 349 

V.  S.  F.  &S.  B.  11.  R.  Co.  109 

V.  Wilson 191,  202,  203 

Watts  V.  Gale 180 

V.  Gayle 485 

Wattson  V.  i)owling 171 

Waugh  I'.  Chauncoy 249 

Waymau  v.  Cochrane 215 

Webber  v.  Gray 529 

Webbs  V.  State 150,  180 

Webster  v.  Adams 167 

V.  Lee 274 

r-  Reid 133 

Weed  V.  Weed 63,  72 

Weeks  v.  Pearson 216 

Weil  V.  Howard 402 

V.  Lowenthal  564 

Weir  V.  Pennington 421 

Wcire  v.  Davenport 425 

W.  Ich  V.  Murray 369 

Welles  V.  Dexter 432 

Wells  V.  Hogau 51 

V.  Moore 267 

V.  "W^aterhouse 124 

Welsh  V.  Sykes 570 

Wennian  v.  Mackenzie 159,  169 

Wenrick  v.  M.ilurdo 163 

Wernwag  i'.  Pawling 575 

West  ?■.  I^iiby 289 

XI.  WiUi'auison 126 

Westcott  V.  Brown 560 

Western  Penn.  R.  R.  v.  John- 
son   348 

Westervelt  u.  Smith   180 


TABLE  OF  CASES. 


xli 


Westerwelt  v.  Lewis 131,  5G0 

Weston  V.  Charlestown IG 

V.  Cliu-U 403 

Wetherill  i\  BtiJiman 5G0,  561 

Wetmore  v.  Law 95 

Weyer  ik  Thoinburgh 234 

Whatdy  v.  Meulieim 13G 

Wheeler's  Estate 472 

Wheeler  v.  Aldrich 1G7 

V.  Kaymond ...  453 

V.  Euckmau 2CG 

V.  ticott.  . .    52 

V.  Van  llouten 274,  320 

Wheelock  r.  Warshauer 185 

Wherry  v.  McCannon 465 

Whetstone  v.  CoUcy 3 

I'.  Whetstone 435 

Whicker  v.  Hume 608 

Whipple  V.  Kent 529 

Whitaker  v.  Bramson 251,  456 

V.  Johnson 25G 

White's  Estate 146 

White  V.  Ixmk  of  U.  S 248,  5U8 

V.  Brown 472 

V.  Cannon     604 

V.  Coi*tsworth 253 

V.  Crew 2'Sl 

r.  Hall    462 

V.  Jones 387 

V.  Munroe 325 

V.  Philbrick 236,  237 

V.  Siniouds 276 

f .  Washington 500a 

V.  Westmeath 270a 

WTiitehcad  v.  Aden 228 

Whitehouse,  In  re 337a 

Whiting  r.  Bank  of  United  States  36 
r.Beebe. .  .216,  392,  475,  477 
V.  Town  of  Clarendon  . .  .241 

Vv'hitnev  v.  Porter 151 

'.'.  Walsh 615 

Whittaker  v.  Jackson 311 

Whittemore  v .  Coster 486 

V.  Shaw 304 

V.  Whittemore.  .274,  320 

Whittier  v.  Hemingway 469 

V.  Wendell 567 

Whitwell  V.  Barbier 127 

r.  Gaugain 357 

Wickliffe  r.  Breckeuridge  . .  .  195,  203 

Wicks  V.  Ludwig  121 

Wierick  v.  De  Zoya 492 

Wiggins  V.  Armstrong 512 

V.  Chaiico    355 

Wight  V.  Wallbaum   121 

i;.  Warnei; 123 

Wilbnr  ii.  Gilmore 2G0 

Wilcox  r.  Kassock 560 

V.  Lee 274 

Wilcoxson  V.  Burton 518 

Wilder  v.  Keeler 157 

I'.  Lee 503 

w.  Case 275 

Wiley  V.  Pratt 498 

Wilkes  V.  Jackson 236 


Wilkes  V.  Perks GO 

Wilkinson  v.  Lelaud 572 

Willaume  v.  Gorges 4G4 

Willet  L".  Fayorweather 325 

Willey  V.  Pauik 180 

Williams  v.  Aiiaroyd 616 

V .  Benedict  403 

V.  Bovvcu     129 

V.  Fitzhugh 253 

V.  Gibbs 189 

V.  Jones 595 

V.  Lee 4>^5 

v.Mutin 334 

V.  McFall 235 

V.  McGrade 409,  416 

V.  Preston 434,  453,  592 

V.  Smith 499 

V.  Stewart 126 

t'.  Sutt.m 171 

Williamson  v.  Case 120 

V.  Field 29 

V.  Fitzsimmons 618 

r.  Holloway  ....462,  463 

Willingham  v.  Long    464 

Willink  V.  Canal  Co 157 

Willis  V .  Bank  of  Mobile 104 

Wills  I'.  Slado 306 

V.  Spraggin  .    151 

Wilson  r.'Ba'uk 576 

V.  Broughton 248,  500a 

V.  Cameron 286 

V.  City  Bank 337a 

V.  Bank  cf  Ht.  Paul  . . .  .337a 

V.  Cleveland 533 

V.  Col'iins 154 

V.  Graham 564 

V.  Jackson 535,  575 

V.  Montgomery 4S9,  495 

v.McClenning 316 

V.  Mowei* 158 

V.  Bay 267 

V.  Wilson 271 

Wimberly  v.  Hurst 135 

Winans  v.  Bacon    281 

L\  Durham 39 

Winchester  v.  Grosvenor 500 

Windwart  v.  Alhn    485 

Wiugato  V.  Haywood 486 

Winn  V.  Jackson 34 

Wiunebrenner  i'.  Eclgerton 553 

Winslow  V.  Ancrnm 341 

V.  Anderson 98 

r.  Griiulal 162,312 

t'.  Lauibard 537 

^Vinstantly  v.  Savage 4G5 

Wiuson  r.  S'larko    159 

Winston  v.  Taylor    567 

I'.  Wc'storfeldt 194 

Winthrop  v.  Lane 504,  507 

W-Intringham  I'.  Wintringham. . .  .512 

"S^'isrt  V.  Withers 529,  530 

Wistar  v.  McManes 511 

Wiswall  V.  Sampson 207 

Witherly  v.  Maun 462 

Withers  v.  Patterson 124,  119 


xlii 


TABLE   OF   CASES. 


Wituor  V.  Schatter 315 

Witter  V.  Fisher 31G 

Wittick  V.  Tnium 2:}S 

"Wixon  V.  Stephens '2 IS 

Wolfe  V.  Van  Medre 150 

V.  Washburn 271 

Womack  v.  Womsck 310a 

Wood  V.  Bayard 152 

V.  Coiviu 480 

V.  Davis  159 

V.  Gamble 220,592 

U.Jackson 273,  284,  3;]0 

V.  Kcyes 57 

V.  Eaymond 2r)la 

V.  Stausberry I'i3 

V.  Toddy 475 

Woodbnrno  u.  riummer 592 

Woodbury  v.  Bowman ....  328 

Woodgato  V.  Fleet 27 1 

Wooden  v.  Clemens 299 

Woodhouse  V.  W.lliams 283 

Woodruli'u.  Cook 524 

U.Taylor GOG,  (JOS 

V.  Walling 414 

Woodson  V.  Barrett 502 

Woodwaj-d  v.  Backus 108,  541 

V.  Newhall 43 

V.  Paine 529 

V.  Spaffords 232 

Woods  V.  Eeynolds 343 

Woolson  V.  Gale 443 

Wooster  v.  Glover 72a 

t).  WoodhuU 541 

Wooster  Co;il  Co.  u.  Nelson  .108,  109 
Worseiy  r.  Scarborough.  191, 198,  305 

Worthington  v.  Curd 281 

Wright  V.  Butler   240,  28 1 

V.  Do  Klyne 270 

V .  Douglass 3GGa 

V.  Dunning 304 

V  Fletcher 55 

V.  Hazen 122,  159 

V.  Iving ^502 


Wright  V.  Leclaire 142 

V.  Levy 423 

V.  Marsh 308 

u.  Mi:^er 48G,  513 

V.  Parks 422 

V.  Salisbury 278 

V.  Tatham 295 

V.  Weisenger 131 

V.  Yell 216 

Wyman-u.  BuckstalT 72 

V.  Campbell G09 

V.  Dorr    2G5 

V.  Mitchell 244 

Wynn  v.  Wilson 500 


Taction  v .  Hubbard   2G8 

Yantes  v.  Burdett 502 

YaplG  r.  Titus 132,  140,  153 

Yaruell  v.  Moore 461 

Y'^ates  V.  Horausen 98 

V.  Lansing 502,  530 

Y'oakum  v.  Tilden 462 

Y'^ouge  L' .  Broxsam * G2 

V.  Shei^perd 516 

York  V.  Cloplon 4S5 

V.  Steele 189 

York  Bank's  Appeal 347 

Young  V.  Black 273 

V.  Bucher 1046 

t'.  Grundy 34 

V.  Hubbell 261 

V.  Pickens 153 

V.  Piosenbaum 228,  COS 

Youngman  v.  Elmira  R.  E..  Co. .  .193 
Yount  V.  Howell 301 


z. 


Zimmerman  v,  Hester 575 


LAW  OF  JUDGMENTS. 


LAW  OF  JUDGMEJSTTS. 


CHAPTEE  I. 

1>ART  I.~DEFINITIOXS  AND  CLASSIFICATIONS. 

§    1.  Lord  Coke's  Definition. 

§    2.  Common  Law  Definition. 

§    3.  Means  of  Enforcing. 

§    4.  Is  a  Judgment  a  Contract  ? 

§§    5,  6,  7,  8.  Classifications  and  Definitions. 

g    9.  Definition  of  a  Decree. 

§  10.  Definition  of  a  Decree,  nisi. 

§  11.  Decree  taken  jiro  confes^n. 

§  12.  Classifications  common  to  Judgmcnts-and  Decrees. 

§  13.  Judgments  in  rem  and  in  personam. 

§  14.  Judgments  under  the  Code. 

§  15.  Orders. 

PART  II.— OF  FINAL  JUDGMENTS. 

§  16.  Puts  an  End  to  the  Suit. 

§  17.  Dismissal  is  a  Final  Judgment. 

§  18.  Vacating  another  Judgment. 

8 19.  Judgment  of  Condemnation. 

§§  2fi  and  34.  Settles  all  issues. 

§  21.  Is  not  always  a  Final  Adjudication. 

§  22.  In  Equitable  Proceedings. 

§  23.  May  contain  Directions  to  be  Executed. 

§  24.  May  requite  future  Orders  of  the  Court. 

§  25.  Requiring  Transfer  of  Proi^erty. 

§  2G.  Requiring  Delivery  of  Property. 

§  27.  Not  Final. 

§  28.  Must  be  ;'-"inal  as  to  all  the  Defendants, 

§§  29  and  31.  Interlocutory  Decree. 

§  30.  Test  of  Fiuality. 

§  32.  Decree  Foreclosing  Liens. 

§  33.  Appeals  Unuefcssary,  not  Permitted, 

§  34.  When  Judgments  Appealable. 

§  35.  Exceptions  to  Rule  of  Api>eal. 

§  3C.  General  Test. 

PART  I.— DEFINITIONS  AND  CLASSIFICATIONS. 
g  1.  Lord  Coke's  Definition. — One  who  sought  to  dignifj 
everything  connected  with  the  common  law,  characterized 
judgments  as  "The  very  vojce  of  law  and  right. "^     This 

1  Co.  Lit.  39a. 

13 


ggl-2  LAW  OF  JUDGMENTS.  [Chap.    I. 

laniruacce,  however  distant  from  the  truth  in  individual 
cases,  is,  when  applied  to  the  aggregate,  but  a  slight  exag- 
geration. A  judgment  is  the  end  of  ih-c  law.^  It  finally 
terminates  the  disputes  and  adjusts  the  adverse  interests 
of  mankind.  That  it  may  in  truth  be  the  "  voyce  of  right," 
legislators  strive  to  make  the  law  more  in  unison  with  the 
dictates  of  justice  ;  judges;  distinguished  for  learning, 
probity  and  wisdom,  are  called  to  the  bench  ;  and  the 
principles  educed  from  successive  ages  of  legal  altercation 
are  carefully  treasured  for  the  benefit  of  the  present  and  of 
the  coming  generations.  Every  judgment  directly  enforces 
some  right  or  suppresses  some  wrong,  thereby  producing 
the  end  sought  by  every  humanely  conceived  law.  Its  in- 
cidental results,  extending  far  beyond  the  time  at  which  it 
is  pronounced,  and  the  parties  whose  rights  it  determines, 
attach  themselves  to  property  or  to  privies  in  blood  or  in 
estate,  and  continue  in  binding  force  and  obligation  for 
indefinite  periods  of  time. 

§  2.  Common  Law  Definition. —  A  judgment,  except 
where  the  signification  of  the  word  has  been  changed  by 
statute,  is  defined  as  being  "The  decision  or  sentence  of 
the  law,  pronounced  by  a  court  or  other  competent  tribunal 
upon  the  matter  contained  in  the  record;"-  or,  as  "The 
conclusion  of  the  law  upon  facts  found "  by  the  court  or 
the  jury,  "or  admitted  by  the  parties."3  The  language  of 
a  judgment  is  not  that  it  is  decreed  or  resolved,  but  that  it 
is  considered  that  the  plaintiff  recover;  or  that  the  defend- 
ant go  without  day.  The  reasons  announced  by  the  court 
to  sustain  its  decision*  and  the  award  of  execution  to  pro- 
duce satisfaction,  constitute  no  part  of  the  judgment.  "At 
law,  the  judgment  is  yea  or  nay,  for  one  party  and  against 
the  other;  and  recognizes  no  liens,  awards  no  execution 
against  specific  property,  unless  when  the  proceeding  is  in 
rem;  but  simply  contains  the  conclusion  of  "the  law  upon 


^Blystone  v.  Blystone,  51  Penn.  S. 
p.  373. 

2Jac.  Law  Die;  3  Bla.  Comm.  395; 
^tna  Insurance  Co.  v,  Swiit,  12 
Minn.,  p.  437. 

14 


3TidcVs  Pr.  930;  Truett  v,  Legg,  32 
Md.  147. 

4Burk  V.  Table  Mountain  Co.,  12 
Cal.  408;  Davidson  v.  Carroll,  23  La. 
An.  108. 


Chap.    I.]  IS  A  JUDGMENT  A   CONTRACT. 


F^2-l 


the  facts  proved,  and  leaves  the  party  to   his  legal   and 
appropriate  writ  to  enforce  it."* 

g  3.  Means  of  Enforcing. — The  law  provides  the  means 
of  enforcing  judgments.  No  court  has  authority  to  assume 
legislative  powers  by  providing  other  means.  Decisions 
made  in  some  of  the  States  proceed  upon  the  theory  that, 
if  any  court  acting  solely  under  authority  conferred  by  the 
common  law,  should  add  to  its  judgment  an  order  requiring 
satisfaction  to  be  made  in  any  other  way  or  by  any  other 
means  than  those  provided  by  law,  as  by  requiring  pay- 
ment to  be  made  in  a  particular  kind  of  money,  the  appel- 
late court  would  strike  such  order  out."  A  different 
conclusion  has,  however,  been  sustained,  by  the  highest 
tribunals  of  several  other  States;  and  there  is  now  a  de- 
cided preponderance  of  the  authorities  affirming  the  exist- 
ence of  the  power  to  enter  judgment  for  coined  dollars, 
and  to  enforce  it  by  an  execution  payable  in  the  same  kind 
of  money.  ^ 

§  4.  Is  a  Judgment  a  Contract? — That  a  judgment  is  a 
contract,  or  in  the  nature  of  a  contract,  has  been  affirmed* 
and  denied^  ^'ith  equal  confidence.  On  one  hand  it  is  urged 
as  conclusive,  that  each  judgment  creates  an  obligation 
capable  of  being  enforced  by  an  action  of  debt  or  assump- 


1  Kramer  u.  Kebman,  9  Iowa,  114. 
A  judgment  should  be  a  simple  sen- 
tence of  the  law,  upon  the  ultimate 
facts  admitted  by  the  pleadings  or 
found  by  the  court.  Gregory  v.  Nel- 
son, 41  Cal.  278. 

sEeed  v.  Eldridge,  27  Cal.  348; 
Whitstone  v.  Colley,  36  111.  328;  Bur- 
ling (.'.  Goodman,  1  Nev.  314. 

sBronson  v.  Eodes,  7  Wall.  229; 
Chesapeake  v.  Swain,  29  Md.  483, 
503:  Taddock  v.  Comm.  Ins.  Co.,  104 
Mass.  518;  Cheang  Kee  v.  United 
States,  3  Wall.  310;  Butler  v.  Horwitz, 
7  Wall.  258;  Ind.  Ins.  Co.  v.  Luding- 
ton,  104  Mass.  192;  Kellogg  v.  Swee- 
ney, 4G  N.  Y.  291. 

4  Morse  v,  Toppan,  3  Gray,  411; 
Stuart  V.  Landers,  IG  Cal.  372. 


6Kae  V.  Hulbert,  17  III.  572;  Todd 
V,  Crumb,  5  McLean,  172;  Larrabee 
V.  Baldwin,  35  Cal.  156 — this  last  case 
ajiplies  to  "contracts"  as  term  is 
used  in  act  fixing  liability  of  stock- 
holders of  corporations.  "A  judg- 
ment is  not  in  itself  a  contract."  ( In 
re  Kennedy,  2  S.  C.  (N.  S.)  226.) 
"Strictly  speaking  a  judgment  is  a 
contract,  and  of  that  class  of  contracts 
called  specialties;  but  the  word  con- 
tract is  not  ordinarily  used  in  a  sense 
that  includes  judgments;  nor  is  it 
generally  so  used  by  law  writers,  nor 
is  it  so  used  in  Sec.  20,  Code  of  Civil 
Procedure."  (Burns  v.  Simpson,  10 
Kans. — 12  Am.  Law  Reg.  59.) 


15 


^§4-5    •  LAW   OF  JUDGMENTS.  [Cliap.  I. 

sit,  according  to  tlie  nature  of  the  judgment.  That  this 
obligation  is  based  upon  an  implied  promise,  entered  into 
ley  every  member  of  society  that  ho  will  pay  all  judgments 
which  may  bo  rendered  against  him,  in  consideration  that 
the  courts  will  assist  him  in  preserving  and  regaining  his 
rights.  On  the  other  hand,  it  is  said,  with  equal  truth,  that 
every  man  v/ho  commits  a  tort  impliedly  agrees,  in  consid- 
eration of  the  harm  done  by  him,  and  the  injury  occasioned 
by  his  misconduct,  to  pay  all  damages  which  his  Avrong  pro- 
duces; and  that  the  same  implied  premises  necessary  to 
prove  that  a  judgment  is  a  contract  may  be  used  with  equal 
justness  and  efficiency,  to  establish  the  same  thing  of  every 
conceivable  cause  of  action.  All  authorities  assert,  that 
the  existence  of  parties  legally  capable  of  contracting,  is 
essential  to  every  contract.  But  a  decided  preponderance 
of  authority  recognizes  judgments  entered  against  lunatics 
and  others  incapable  in  law  of  contracting,  as  conclusively 
binding  until  vacated  or  reversed.  It  seems,  then,  that  in 
order  to  prove  that  a  judgment  is  in  the  nature  of  a  con- 
tract, we  must  supply  two  of  the  three  essentials  of  each 
contract  by  implication,  and  the  third  by  some  means  not 
yet  discovered. 

§  5.  Class'fication  v/ith  Reference  to  Stage  of  the  Pro- 
ceedings.— Judgments,  considered  in  reference  to  the  stage 
of  the  proceedings  at  which  they  are  entered,  are  of  four 
sorts  : 

1st.  "Where  the  facts  are  admitted  and  the  law  disputed, 
as  on  demurrer  ; 

2d.  Where  the  law  is  admitted  and  the  facts  disputed,  as 
in  case  of  verdict  ; 

3d.  Where  both  the  law  and  the  facts  are  admitted,  as  in 
cases  of  confession  or  upon  default ; 

dth.  Where  the  plaintiff  is  convinced  that  the  facts  or  the 
law,  or  both,  are  insufficient  to  support  his  action,  and 
therefore  abandons  or  withdraws  his  prosecution,  as  in  judg- 
ment upon  nonsuit  or  retraxit.  ^ 

This  classification,  though  acquiesced  in  for  a  long  time, 

1  3  Black.  Comm.  39C  :  Jac.  Law  Die;  Derby  u.  Jacques,  1  Cliliord,  432; 
Blaikie  v.  Griswold,  10  Wis.  293. 

16 


Cliap.  I.]  CLASSIFICATION.  ^§^-0 

is  neither '^accuratolj  expressed  uor  correctly   illustrated. 
Tiiere  are  individual  cases  Avliere  the  law  is  admitted  and 
the  facts  disputed,  but  such  cases  do  not  form  themselves 
into  a  distinct  class.     The  law  arising  upon  a  verdict  is  not 
brought  to  the  attention  of  the  court  by  any  pleading,  yet, 
far  from  being  admitted,  it  is  frequently  the  subject   of 
animated  and  lengthy  contests,  both  in  subordinate  and  in 
appellate  courts.     Nor  is  it  certain,  as  implied  by  the  third 
subdivision,  that  there  is  any  class  of  cases  where  both  the 
law  and  the  facts  are  admitted.     A  default,  in  no  instance, 
authorizes  any  judgment  to  be  rendered  against  the  defend- 
ant unless  a  sufficient  cause  of  action  is  stated  in  the  com- 
plaint.    If  there  be  any  case  where  the  law  is  admitted  so 
as  to  subject  the  defendant  to  a  judgment  which  would 
otherwise  be  regarded  as  erroneous,  it  must  be  where  a 
default,   or  other  confession  of  facts,    is  accompanied   by 
such  circumstances  as  create  a  presumption  that  he  agreed 
to  waive  all  errors.     This  would  amount  to  an  agreement  to 
relinquish  his  right  to  reverse  a  judgment  unsupported  by 
law,  but  not  to  an  admission  that  the  law,  applied  to  the 
undisputed  facts,    would   properly  result  in    a  judgment 
against  him. 

g  6.  Classification  v/ith  Reference  to  State  of  the 
Pleadings. — Perhaps  a  better  classification  of  judgments, 
would  be  one  made  with  reference  to  the  state  of  the  plead- 
ings at  the  time  the  court  makes  its  final  decision.  Such  a 
classification  would  not  diifer  materially  from  the  one  here- 
tofore given  ;  but  it  could  be  more  simply  and  clearly  ex- 
pressed.    According  to  it,  the  classes  would  be  as  follows  : 

1.  The  judgment  rendered  where  the  pleadings  presented 
no  other  issue  than  an  issue  of  law. 

2.  The  judgment  rendered  upon  the  decision  of  a  court 
or  a  jury  upon  the  issue  or  issues  of  fact  made  by  the 
pleadings. 

3.  The  judgment  given  where  no  issue  has  been  made  by 
the  party  required  to  plead. 

4.  Where  before  or  after  the  joining  of  an  issue  of  law 
or  of  fact  the  plaintiii*  abandons  or  withdraws  his  prosecu- 
tion. 

(2)  17 


§7  LAW  or  JUDGMENTS.  [Chap.   I. 

§  7.  Various  kinds  of  Judgments,  and  how  Classified. 
— In  the  first  class  of  either  classification  are  included: 

1st.  The  judgment  given  for  the  plaintiff,  when  an  issue 
of  law,  formed  by  a  demurrer  to  any  of  the  pleadings  in 
chief,  is  determined  in  his  favor.  It  is  final,  and  is  called 
a  judgment  quod  recuperet. 

2d.  The  judgment  given  for  defendant  udien  a  like  issue 
is  found  in  his  favor. 

3d.  Judgment  of  respondeat  onster,  a  species  of  interlo- 
cutory judgment  for  the  plaintiff,  on  demurrer  to  a  plea  in 
abatement,  when  it  appears  that  the  defendant  has  mistaken 
the  law  on  a  point  not  affecting  the  merits  of  the  case.  By 
this  judgment  he  is  allowed  to  plead  such  further  defense 
as  he  may  have. 

4th.  The  judgment  given  for  the  defendant  on  a  demurrer 
to  a  plea  in  abatement,  which  is,  that  the  writ  be  quashed. 

In  the  second  class  are  included  : 

1st.  The  judgment  for  plaintiff  upon  an  issue  of  fact 
found  in  his  favor. 

2d.  The  judgment  of  nil  capiat  per  breve,  or  jper  hillum, 
when  such  issue  is  determined  in  his  favor. 

3d.  Judgment  quod  partes  replacitent.  This  is  given  if  an 
issue  be  formed,  and  a  verdict  returned,  on  so  immaterial  a 
point  that  the  court  cannot  know  for  whom  to  gi-\*c  judgment. 
The  parties  must  then  reconstruct  their  pleadings,  begin- 
ning at  the  first  fault  which  occasioned  the  immaterial  issue. 

The  third  class  includes: 

1st.  Judgment  nihil  dicit,  rendered  whenever  the  defend- 
ant fails  to  plead  to  the  plaintiff''s  declaration  in  the  time 
allowed  for  him  to  do  so.  This  judgment  is  proper, 
although  the  defendant  who  fails  to  plead  in  time,  may  have 
appeared  by  attorney.  ^ 

2d.  Judgment  non  sum  informatus,  is  the  one  rendered 
when  the  defendant  enters,  upon  the  record,  that  he  is  not 
informed  of  any  defense  to  the  action. 

3d.  Judgment  by  confession,  relicta  verification e,  entered 
when  the  defendant  either  confesses  the  action  in  the  first 
instance,  or  when,  after  pleading,  he,  before  trial,  abandons 
his  plea. 

1  Stewart  v.  Goocic,  29  Ala.,  47G,  citing  Comyn's  Digest,  Vol.  G,  p.  147. 
18 


Chap.  I.]  CLASSIFICATION.  ^7 

4tli.  The  judgment  uon  obstante  veredicto.  Tliis  is  ren- 
dered, when,  after  the  verdict  of  the  jury  has  been  returned, 
and  before  the  judgment  thereon  is  entered,  it  appears  by 
the  records  that  the  matters  pleaded  or  replied  to,  although 
found  true,  constitute  neither  a  defense  nor  a  bar  to  the 
action.^  This  judgment  can  only  be  entered  on  application 
of  tlie  plaintiff." 

The  fourth  class  comprises : 

1st.  Judgment  of  non  pros,  entered  against  the  plaintiff, 
before  any  issue  is  joined,  for  not  declaring,  replying,  or 
surrejoining,  or  for  not  entering  the  issue  agreeably  to  the 
rules  of  the  court. 

2d.  Judgment  on  nolle  proseqid,  which  is  entered  when 
plaintiff  declares  that  he  will  not  furthur  prosecute  his  suit, 
as  to  the  whole  or  a  part  of  his  cause  of  action,  or  as  to 
some  or  all  of  the  defendants.  Of  a  similar  nature  is  the 
entry  of  a  stet  processus,  by  which  plaintiff  agrees  that  all 
further  proceedings  shall  be  stayed.  This  entry  is  usually 
made  when  the  defendant  becomes  insolvent  pending  the 
action,  and  the  object  is  to  prevent  his  obtaining  a  judg- 
ment, as  in  case  of  nonsuit.^ 

3d.  Judgment  of  retraxit.  This  is  given  when  the  plainV 
iff,  in  person*,  voluntarily  goes  into  court  and  enters  on 
the  record  that  he  is  in  nonsuit,  or  that  he  withdraws  his 
suit .  "A  retraxit  differs  from  a  nonsuit  in  this;  one  is  nega- 
tive, and  the  other  positive.  The  nonsuit  is  a  mere  default 
or  neglect  of  the  plaintiff,  and  therefore  he  is  allowed  to 
begin  his  suit  again  upon  payment  of  costs;  but  a  retraxit 


1  Fitch  V.  Scott,  1  Eoot,  351;  Bel- 
lows r.  Shannou,  2  Hill,  8G:  State  v. 
Commercial  Bank,  G  S.  &  M.,  218; 
SuUeuberger  r.  Gest,  14  Ohio,  204. 

sSmithr.  Smith,  4  Wend.  408.  The 
proper  course  for  a  defendant  against 
■whom  judgment  has  been  rendered, 
upon  pleadings  which  will  not  sustain 
a  recovery,  is  by  motion  in  arrest. 
Bellows  V.  Shannou,  2  Hill,  86.  Mo- 
tion for  judgment  non  obstante  vere- 
dicto must  be  made  after  the  verdict, 
but  before  the  rendition  of  the  judg- 
ment on  it.     State  r.  Bank,   G  S.   & 


M.  218,  on  authority  of  2  Tidd's  Pr. 
840.  As  to  cases  where  this  judgment 
may  be  given,  see  Shepherd  '•.  Halls, 
2  Dowl.  453;  Britton  v.  Fisher,  2G  Q. 
B.  (Upper  Canada)  338;  Kerr  v. 
Straat,  8  Q.  B.  (Upper  Canada)  82; 
iladrall  r.  Thelluscn,  21  L.  J,  Hep. 
(N.  S.)  Q.  B.  410;  Leigh  v.  Lillie,  6 
H.  &  N.  165;  Snyder  v.  Robinson,  35 
lud.  311;  Lough  v.  Thornton,  17 
Minn.  253;  Morris  v.  Zeigler,  71  Pa. 
S.  450. 

sTidd's  Pr.  681-2. 

•iThomason  v.  Odum,  31  Ala.  108. 

19 


§§7-9  ■L.\.W  or  JUDGMENTS.  [Chap.    I. 

is  an  open  voluntary  renunciation  of  his  claim  in  court,  and 
bv  this  he  forever  loses  his  action. "^ 

4th.  Judgment  of  nonsuit;  uhich  is  of  two  kinds,  vol- 
untary and  involuntary.  When  plaintiff  abandons  his  case 
and  consents  that  judgment  go  against  him  for  costs,  it  is 
voluntary.  But  when  he,  being  called,  neglects  to  appear; 
or  when  he  has  given  no  evidence  on  which  a  jury  could  find 
a  verdict,  it  is  involuntar}'.  "Where  a  plaintiff  is  demanded 
and  doth  not  appear,  he  is  said  to  be  in  nonsuit.  And  this 
usually  happens  where,  on  the  trial,  and  when  the  jury  are 
ready  to  give  their  verdict,  the  plaintiff  discovers  some-error 
or  defect  in  the  proceedings,  or  is  unable  to  prove  some 
material  point  for  want  of  witnesses."- 

^  8.  Judgment  Capiatur,  Misericordia,  and  in  Actions 
of  Partition  and  Account. — The  defendant,  who,  in  a  civil 
action,  was  convicted  of  a  wrong  committed  vi  et  armis,  was 
obliged  to  pay  a  fine  to  the  king  for  the  breach  of  the  peace 
implied  in  the  act.  A  judgment  capiatur  was  entered  against 
him,  under  Avhicli  he  was  liable  to  be  arrested  and  imprisoned 
until  the  fine  was  paid.  A  judgment,  sometimes  given  at  com- 
mon law,  against  a  party  for  the  unjust  vexation  occasioned 
by  his  action,  was  called  judgment  misericordia.  The  inter- 
locutory judgment  in  an  action  for  partition,  directing  a  par- 
tition to  be  made,  was  called  judgment  quod imriiilo  fiat;  while 
a  final  judgment  in  such  action,  quod  par  titio  facto  firma  ctsta- 
hills  in  2^erpeiuiim,  was  entered  after  the  return  of  the  writ.^ 
The  interlocutory  judgment  in  an  action  of  account,  compel- 
ling defendant  to  account,  was  named  judgment(2uoc?compMfe^. 

§9.  Definition  of  Decree. — Daniell,  in  his  "Practice 
in  the  High  Court  of  Chancery,"  says  that  a  "  Decree  is  a 
sentence  or  order  of  the  court,  pronounced  on  hearing  and 
understanding  all  the  points  in  issue,  and  determining  the 
rights  of  all  the  parties  in  the  suit  according  to  equity  and 
good  conscience."'^  It  is  to  be  hoped  that  decrees  generally 
conform  to  the  description  here  given  of  them.  They  are 
none  the  less  decrees,  however,  if  pronounced  without  hear- 
ing or  understanding  the  points  in   issue.     Neither   is   it 


1  3  Bla.  Coram.  296;  31  Ala.  108. 
27  Bac.  Ab.  214. 

20 


3  5  Bac.  Ab.  292. 
4Daul.  Ch.  Pr.  1192. 


Chap.  I.]      DECREE  TAKEN  PRO  CONFESSO.         §^-12 

necessary  to  tlieir  existence  or  validity,  that  the  rights  of  the 
parties  bo  determined  according  to  equity  and  good  con- 
science. The  chief  differences  between  decrees  in  equity 
and  judgments  at  common  law  are  as  follows:  The  former 
are  pronounced  by  courts  of  equity;  the  latter  by  courts  of 
law.  The  former  result  from  an  investigation  and  deter- 
mination of  the  rights  of  the  parties,  by  the  means  provided 
and  according  to  the  principles  recognized  in  equity  iuris- 
prudence ;  the  latter  result  from  an  investigation  and  deter- 
mination made  by  the  more  limited  means,  and  more  in- 
flexible rules,  of  the  common  law.  The  former  may  be 
adjusted  to  all  the  varieties  of  interest  and  of  circumstance, 
and  may  contain  such  directions  as  are  needed  to  carry 
them  into  effect,  both  in  letter  and  in  spirit;  the  latter  are 
in  an  invariable  form,  general  in  terms,  and  absolute  for 
plaintiff  or  defendant.  And  the  former  often  enforce  rights 
not  recognized  by  the  common  law;  and  which,  without 
the  aid  of  courts  of  equity,  could  be  enforced  only  by  the 
consciences  of  men. 

2>  10.  Decree  Nisi. — A  decree  nisi  is  the  decree  £>"iven 
under  the  English  practice,  when  the  cause  is  called  for 
hearing  and  the  defendant  does  not  appear  to  open  his  an- 
swer. Upon  proof  of  the  service  of  the  subpoena  to  hear 
judgment,  the  court  will  enter  such  decree  for  the  plaintiff' 
as  his  counsel  may  desire,  accompanying  it  with  a  clause  to 
the  effect  that  it  is  to  be  binding,  unless,  being  served  with 
process,  the  defendant  shall,  within  a  given  time,  show 
cause  to  the  contrary. 

§  11.  Decree  taken  Pro  Confesso. — A  decree  taken  jjro 
confcsso,  is  one  entered  when  the  defendant  has  made  de- 
fault by  not  appearing  in  the  time  prescribed  by  the  rules  of 
the  court.  A  decree  nisi  is  drawn  by  the  plaintiff's  counsel, 
and  is  entered  by  the  court  as  it  is  drawn.  A  decree  where 
the  bill  is  taken  pro  confesso,  is  pronounced  by  the  court 
after  hearing  the  pleadings  and  considering  the  plaintiff's 
equity. 

§  12.  Classifications  common  to  "both  Judgments  and 
Decrees. — Both  judgments  and  decrees,  considered  in  rela- 

21 


^f?12-14  LAW   OF  JUDGMENTS.  [Cliap.  I. 

tiou  to  tliG  juriscliction  in  v/liich  they  were  rendered,  are 
either  foreign  or  domestic.  Considered  with  regard  to  their 
effect  in  putting  an  end  to  an  action,  thev  are  either  final  or 
interlocutory.  Any  judgment  or  decree,  leaving  some  fur- 
ther act  to  be  done  by  the  court,  before  the  rights  of  the 
parties  are  determined,  and  not  putting  an  end  to  the  action 
in  which  it  is  entered,  is  interlocutory.  But  if  it  so  com- 
pletely fixes  the  rights  of  the  parties,  that  the  court  has 
nothing  further  to  do  in  the  action,  then  it  is  final.  A  final 
judgment  or  decree  may  only  dispose  of  the  action,  leaving 
the  plaintiff  at  liberty  to  commence  another  suit  on  the 
same  cause,  as  in  case  of  a  dismissal  or  voluntary  nonsuit 
by  the  plaintiff  ;  or  it  may,  besides  disposing  of  the  action, 
determine  all  the  rights  involved  in  the  suit,  and  become  a 
bar  to  all  other  suits  between  the  same  parties  in  reference 
to  the  same  subject  matter. 

§  13.  Judgments  In  Rem  and  In  Personam. — Judgments 
and  decrees  arc  either  in  personam  or  in  rem.  They  are 
in  personam  vfhevL  the  proceedings  are  against  tlie  pevsori,; 
provided  the  adjudication  be  of  such  a  nature  as  to  be  bind- 
ing only  upon  the  parties  to  the  suit  and  their  privies  in 
blood  or  estate.  Judgments  and  decrees  in  rem  are  not,  as 
the  term  implies,  confined  to  proceedings  where  j)roperty 
is  proceeded  against  as  a  party  to  the  action  ;  but  include, 
in  addition  to  adjudications  against  the  thing,  all  those  de- 
cisions or  sentences,  which,  by  the  policy  of  the  law,  are 
binding  upon  all  other  persons  as  well  as  upon  the  parties 
to  the  suit.  The  proceedings  prior  to  the  judgment  or  de- 
cree may  be  in  personam,  no  notice  need  be  given  except  to 
the  defendant,  yet  if  the  judgment  affect  the  status  of  any 
person,  or  of  any  subject  matter,  as  in  a  suit  for  divorce,  it 
is  conclusive  upon  the  whole  world,  and  is  therefore  classed 
as  being  in  rem.  The  general  nature  of  this  class  of  judg- 
ments, and  the  various  definitions  given  by  different  au- 
thors, will  be  considered  in  a  subsequent  chapter.      ...... 

g  14.     Judgments  under  the  Code. — The  Code  of  Pro- 
cedure,  adopted   by  several  States,    providing   that  there 
shall  be  but  one  form  of  civil  actions,  defines  a  judgment 
to  be  "the  final  determination  of  the  rights  of  the  parties 
22 


Chap.  i.J  OKDEP.s.  §§14-15 

in  an  action  or  proceeding."'  This  definition  is,  in  one 
respect,  more  comprehensive  than  the  one  first  given  in 
this  chapter,  as  it  includes  the  final  decrees  of  courts  of 
equity.  In  another  respect  it  is  less  comprehensive,  be- 
cause it  excludes  all  interlocutory  judgments.  It  is  just 
broad  enough  to  comprise  all  final  judgments  and  all  final 
decrees,  ^  and  narrow  enough  not  to  comprise  any  which  is 
less  than  final.  There  can  now  be  uo  such  thing  as  an  in- 
terlocutory judgment  in  any  case.^ 

§  15.  Orders. — The  class  of  judgments  and  of  decrees, 
formerly  cidled  interlocutory,  is  included  in  the  definition 
given  in  the  Code  of  the  word  order.  "Every  direction  of 
the  court  or  judge  made  or  entered  in  writing,  and  not  in- 
cluded in  a  judgment,  is  an  order."*  The  Supreme  Court 
of  California,  in  one  of  its  earliest  decisions,  asked  the 
question,  "What  then  is  the  distinction  between  an  order 
and  a  final  judgment?"  and  answered  it  by  saying:  "The 
former  is  a  decision  made  during  the  progress  of  the  cause 
either  prior  or  subsequent  to  final  judgment,  settling  some 
point  of  practice  or  some  question  collateral  to  the  main 
issue,  presented  by  the  pleadings  and  necessary  to  be  dis- 
posed of  before  such  issue  can  be  passed  upon  by  the  court, 
or  necessary  to  be  determined  in  carrying  the  execution  into 
effect."'^  The  same  tribunal,  in  a  subsequent  opinion,  said: 
"An  order  is  the  judgment  or  conclusion  of  the  court  upon 
any  motion  or  proceeding.  It  means  cases  where  a  court  or 
judge  grants  affirmative  relief,  and  cases  where  affirmative 
relief  is  denied. "«  In  New  York,  it  has  been  decided  that 
the  decision  of  a  court,  overruling  a  demurrer  and  allowing 
the  defendant  time  to  answer,  is  not  an  order  but  a  judg- 
ment. The  grounds  upon  which  this  conclusion  was  based 
were:  1st.  That  an  order  is  the  decision  of  a  motion,  while 
a  judgment  is  the  decision  of  a  trial.     2d.  That  a  trial  is 


IX.  Y.  Code,  §245;  Cal.  Pr.  Act, 
§l'il;  Kansas  Code,  §395;  Nev.  Pr. 
Act,  $  144;  Oregon  Code,  §  240;  Cal. 
Code  of  C.  P.,  §  577. 

2  State  V.  Mc Arthur,  5  Kansas,  p. 
280. 

si5elmont  v.  Ponvcrt,  3  Eob.  G93. 


4   §400,  N.  Y.  Code;  §458,  Nevada 

Code;    §  521,    Kansas   Code;     §  513; 

Oregon   Code;   §515,    Cal.   Pr.    Act, 

§1003,  Cal.  Code,  C.  P. 
5Loring  v.  Ilsey,  1  Cal.  27, 
GGilmau  v.  Contra  Costa  Co.,  8  Cal. 

57. 

23 


ggl5-lG  LAW  OF  JTJDGilENTS,  [Chap.  I.^ 

an  examination  of  an  issueof  law  or  of  fact;  and  3cl,  tliat^ 
as  a  decision  upon  detnurrer  necessarily  involves  an  exam- 
ination of  an  issue  of  law,  it  is  a  decision  upon  a  trial  and 
is  therefore  a  judgment.^  If  this  reasoning  be  correct,  and 
the  premises  assumed  be  true,  it  follows  that  there  can,  un- 
der the  Code,  be  two  judgments,  or,  in  other  words,  two 
final  determinations  of  the  rights  of  the  parties  in  the  same 
action.  The  Code  defines  a  judgment,  but  does  not  define 
it  to  be  nothing  more  than  "  the  decision  of  a  trial."  Only 
those  decisions  of  trials,  amounting  to  final  determinations 
of  the  rights  of  the  parties,  answer  to  the  definition  given 
of  a  judgment.  Hence,  it  is  obvious  that  an  order  over- 
ruling a  demurrer,  but  giving  the  defendant  an  opportunity 
to  answer,  is  not  a  judgment  within  the  meaning  of  the 
Code. 

PART  II.- OF  FINAL  JLT)GMEXTS. 

g  IG.  Puts  an  End  to  the  Suit.  The  25th  section  of 
the  Judiciary  Act  of  the  United  States,  provides  that  ix  final 
judgment  or  decree  in  any  suit  in  the  highest  court  of  law 
or  of  equity  of  a  State,  in  which  a  decision  of  the  suit  can 
be  had,  may,  in  certain  cases  therein  specified,  be  re-exam- 
ined and  reversed  or  afiirmcd  in  the  Supreme  Court  of  the 
United  States.  The  statutes  of  the  several  States  also  gen- 
erally provide  for  appeals  to  their  highest  courts  from  final 
judgments  and  decrees  in  the  subordinate  courts.  Hence 
it  has  frequently  been  necessary  to  determine,  both  in  the 
State  and  in  the  Federal  Courts,  whether  a  given  judgment 
or  decree  was  final  within  the  meaning  of  the  statute  author- 
izing appeals.  A  like  necessity  existed  at  common  law. 
Thus  in  Metcalfe's  case,"  "it  was  resolved  that  no  writ  of 
error  lies  till  the  last  judgment."  Lord  Ellenborough  de- 
clared "  error  can  only  be  brought  on  final  judgment  j"^  and 
there  are  many  other  determinations  to  be  found  among 
the  Common  Law  Keports,  to  the  same  general  eftect.* 
There  is  no  doubt,  that  in  order  to  come  within  these  stat- 


iKing  V.  Stafford,  5   How.  Pr.  30; 
Bentley  %\  Tones,  4  How.  Pr.  333. 
211  Coke  Rep.  G8. 
3 Samuel  v.  Judiu,  6  East,  333. 

24 


4 Mayor  of  Macclesfield  v.  Gee,  11 
M.  &  W.  170;  Shepherd  v.  Sharp,  1 
H.  k  N.  11-1;  Grand  Trunk  Railway 
Co.  V.  Ainey,  20  C.  P.  (Upper  Can- 
ada;, G. 


Cliap.  I.J  DISMISSAL.  §PG-17 

utes,  or  to  satisfy  the  tests  applied  by  tlie  common  law,  the 
judgment  or  decree  need  not  finally  determine  the  rights  of 
the  parties  litigant;  it  is  sufficient  if  it  end  the  particular 
suit  in  which  it  is  entered.* 

Every  definite  sentence  or  decision  by  which  the  merits 
of  a  cause  are  determined,  although  it  be  not  technically  a 
judgment,  or  although  the  proceedings  are  not  capable  of 
being  technically  enrolled  so  as  to  constitute  what  is  techni- 
cally called  a  record,  is  a  judgment  within  the  meaning  of 
the  lav/.     According   to  the  common  law  rule,  by  a  final 
judgment  is  to  be  understood,  not  a  final  determination  of 
the  rights  of  the  parties,  but  merely  of  the  particular  suit." 
A  judgment  "  that  the  defendant  go  hence,  and  that  he  re- 
cover his  costs,  etc.,"  though  not  very  formal,  is  a  good 
final   judgment,    because   no   further  action  can  be   taken 
while  it  remains  in  force.  ^     But  a  judgment  for  costs  alone, 
though  entered  for  defendant,  after  the  jury  have  found  a 
verdict  in  his  favor,  it  seems,  is  not  final,  and  cannot  there- 
fore be  made  the  subject  of  revision   after  appeal.     The 
reasons  urged   against  regarding  such  a  judgment  as  final, 
are  that  it  does  not  dismiss  the  defendant  without  day,  nor 
state  that  plaintiff  shall  take  nothing  by  his  suit,  nor  in  any 
way,  nor  by  any  terms,  profess  to  dispose  of  the  subject 
matter  of  the  litigation.* 

§  17.  Dismissal. — The  dismissal  of  a  suit  by  the  plaint- 
iff is  a  judgment  within  the  meaning  of  the  Code.  Where, 
in  a  suit,  a  temporary  injunction  has  been  issued,  and  the 
plaintiff,  after  giving  bonds  to  secure  the  payment  of  all 
damages  which  may  be  occasioned  by  reason  of  the  in- 
junction being  improperly  issued,  dismisses  his  suit,  or 
permits  it  to  be  dismissed  for  want  of  prosecution,  such 
dismissal  is  a  final  judgment,  and  an  adjudication  that  the 
injunction  ought  not  to  have  issued,  on  which  an  action  may 
be  maintained  on  the  bond  for  all  damages  resulting  from 


iWestou  V.  City  of  Charleston,  2 
Pet.  449;  Ludlow's  Heirs,  v.  Xidd's 
Esrs.,  3  Hamm.  541;  Helm  u.  Short, 
7  Bush,  G23. 

2 Belt  V.  Davis,  1  Cal.  138;  Klinkr. 
Steamer  Cuzetta,  30  Geo.  504. 


sKogers  v.  Gosnell,  51  Mo.  4G8. 

4Warren  v.  Sherman,  5  Tex.  450; 
Higbee  v.  Bowers,  9  Mo.  354;  Ney- 
land  V.  White,  25  Tex.  319;  Green  v. 
Banks,  24  Tex.  522. 

25 


§§17-20  LAW   OF   JUDGMENTS.  [Cliap.  I. 

the  injuDctiou.  Altliongb  in  case  of  a  judgment  bj  dis- 
missal, the  issues  are  neither  examined  nor  passed  upon  by 
the  court,  yet,  by  the  faihire  of  the  plaintiff  to  prosecute 
his  action,  they  are  virtually  confessed.  A  dismissal  under 
such  circumstances,  while  it  does  not  estop  the  plaintiff 
from  maintaining  a  new  suit  on  the  same  cause  of  action, 
does  dispose  of  the  rights  of  the  parties  in  the  action  in 
the  same  manner  as  if  there  had  been  an  adjudication  on 
the  merits.  ^ 

§  18.  Judgment  Vacating  another  Judgment. — "Wlicn, 
in  an  action  to  set  aside  a  judgment,  the  court  grants  the 
prayer  of  the  complaint  and  awards  a  new  trial,  the  order 
setting  aside  the  judgment  is  a  final  judgment,  and  as  such 
may  be  appealed  from.  The  whole  scope  and  object  of  the 
suit  being  to  vacate  the  former  judgment,  and  to  procure  a 
new  trial,  and  the  issues  all  being  made  up  for  that  pur- 
pose, their  determination  necessarily  puts  an  end  to  the 
suit.  - 

§  19.  Judgment  of  Condemnation. — In  a  proceeding  by 
a  railroad  company  to  condemn  lands,  or  a  right  of  way 
across  lands,  where  the  j)arties  in  interest  are  summoned  to 
appear  and  contest  with  the  i)etitioners,  and  where  commis- 
sioners are  appointed  to  assess  the  value  of  the  property 
sought  to  be  condemned,  and  a  report  is  made  by  them  and 
confirmed  by  the  court,  and  the  court  adjudges  that  the 
petitioners  have  brought  themselves  within  the  provisions 
of  the  act  providing  for  the  condemnation,  the  action  of  the 
court  is  a  final  judgment  within  the  meaning  of  the  o47th 
section  of  the  Practice  Act,  allowing  an  appeal  from  a  final 
judgment  entered  in  an  action  or  special  proceeding.  ^ 

§  20.  Settles  all  the  Issues. — Sometimes  several  issues 
of  law  and  of  fact  are  presented  for  the  consideration  of  the 
court  in  the  same  suit  or  proceeding.     In  such  case,  there 


iDowling  V.  Polack,  18  Cal.  C25; 
Loomis  V.  Brown,  16  Barb.  325; 
Shearruan  v.  N.  Y.  Central  MiJly,  11 
How.  Pr.  2G9;  Coates  v.  Coates,  1 
Duer.  GG4;  Leese  v.  Sherwood,  21 
Cal.  1C3. 

2G 


2  Belt  V.  Davis,  1  Cal.  134;  McCall 
v.  Hitclicock,  7  Busli,  015. 

3S.  P.  &  N.  E.  E.  Co.  V.  Harlan, 
24  CaL  337. 


Chap.  I.]  IN  EQUITABLE  PROCEEDINGS.  g§20-23 

Ciin  bo  no  jiulgmeut  from  wliicli  an  appeal  may  be  taken 
until  all  the  issues  are  determined.  For  altliongli  the  de- 
termination of  an  issue  of  law  is  a  trial,  and  the  decision 
rendered  thereon,  is  not  an  order  within  the  definition  of 
the  Code  of  Now  York,  but  a  judgment,  still  it  is  not  until 
the  final  judgment  is  entered  that  an  appeal  will  lie.i 

§  21.  Not  always  a  Final  Adjudication. — A  judgment 
may  be  final  so  as  to  authorize  an  appeal  from  the  court  in 
which  it  was  rendered,  without  being  final  as  to  the  subject 
matter  in  litigation.  An  appeal  may  be  taken,  iu  which 
case,  the  judgment  of  the  inferior  tribunal  is  not  final  as  to 
the  subject  matter,  because  it  may  be  changed  by  the 
appellate  court.  Thus  a  covenant  in  a  deed  that  if  the 
title  to  certain  lands  were  not  confirmed  to  the  covenantor 
by  the  courts  of  the  United  States  before  which  it  Avas  pend- 
ing, upon  the  final  adjudication  of  the  same,  the  covenantor 
w^ould  pay  a  sum  of  money,  does  not  become  a  cause  of 
action  when  the  District  Court  refuses  to  confirm  the  title 
and  declares  it  invalid.  Until  the  time  for  appeal  has 
elapsed,  or  until  the  judgment  of  the  highest  court  in  which 
the  suit  could  be  determined,  has  pronounced  against  the 
validity  of  the  title,  there  has  been  no  such  final  adjudica- 
tion as  was  intended  by  the  parties  to  the  covenant.  - 

8  22,  In  Equitable  Proceedings. — The  courts  have  expe- 
rienced considerable  difiiculty  in  determining  v.hat,  under 
the  code,  is  a  final  judgment,  in  proceedings  in  the  nature 
of  suits  in  equity.  Some  of  the  decisions  do  not  seem 
exactly  in  harmony  with  the  others.  TVe  shall  now  notice 
the  cases  in  whicli  the  judgments  before  the  courts  have 
been  declared  to  be  final,  and  shall  then  note  several  cases 
in  which  they  have  been  considered  interlocutory. 

§  23.  May  Contain  Directions  to  be  Executed  in 
Future. — A  stockholder  having  commenced  an  action 
against  a  corporation  and  its  ofiicers,  for  an  accounting  and 
settlement  of  its  affairs,  a  decree  was,  after  a  full  hearing 
on  the  merits,  entered  in  accordance  with  the  prayer  of  the 

1  King  V.  Stafford,  5  Ilovr.  Pr.  30;  I       sHills  v.  Sherwood,  33  Cal.  474. 
Bentlcy  v.  Jones,  4  IIow.  Pr.  335. 

27 


g §23-25  LAW  OF  JUDGMENTS.  [Cliap.    I. 

complaint.  By  tliis  decree  a  receiver  was  appointed  to  take 
charge  of  the  corporate  assets  until  the  further  order  of  the 
court,  to  collect  moneys  due  or  to  become  due,  sell  stock, 
and  pay  the  proceeds  in  accordance  with  directions  given 
in  the  decree.  The  Supreme  Court  declared  that  this  de- 
cree was  a  final  judgment  and  subject  to  appeal.^  A  de- 
cree entered  in  an  action  brought  for  an  accounting  and 
for  a  dissolution  of  a  copartnership,  granting  the  relief 
prayed  for,  ordering  a  sale  of  all  the  partnership  assets, 
and  specifying  the  manner  in  which  the  proceeds  of  such 
sale  shall  be  distributed,  is  a  final  decree."  , 

§24.  May  Require  Future  Orders. — These  decisions 
are  fully  sustained  by  several  of  the  decisions  of  the  courts 
of  State  of  Kew  York.  Although  further  proceedings,  be- 
fore the  master,  are  necessary  to  carry  the  decree  into  effect, 
yet,  if  all  the  consequential  directions  depending  on  the 
result  of  the  proceedings  are  given  in  the  decree,  it  is  final. 
A  decree  is  none  the  less  final  because  some  future  orders 
of  the  court  may  become  necessar^'^  to  carry  it  into  effect.^ 

§  25.  Requiring  Conveyance  of  Property. — In  the  case 
of  Travis  v.  Waters,  12  Johns.  500,  a  decree  was  said  to  be 
final  when  all  the  facts  and  circumstances  material  to  a 
complete  explanation  of  the  matters  in  litigation  were 
brought  before  the  court,  and  so  fully  and  clearly  ascer- 
tained on  both  sides,  that  the  court  has  been  enabled  to 
collect  the  respective  merits  of  the  parties  litigant,  and, 
upon  full  consideration,  has  determined  between  them  ac- 
cording to  equity  and  good  conscience.  This  case  was  for 
a  specific  performance  of  a  contract  to  convey  certain  lands. 
The  chancellor  having  made  an  order  that  the  defendant, 
under  direction  of  one  of  the  masters  of  the  court,  on  pay- 
ment or  tender  to  him  of  a  certain  sum  of  money,  execute 
and  deliver  to  the  plaintiff  a  good  and  sufficient  conveyance 
of  the  real  estate  in  controversy  ;  this  order,  though  silent 
as  to  costs,  was  considered  as  within  the  above  definition 


t  Neall  V.  Hill,  16  Cal.  145. 
2 Clark  V.  Dunham,  S.  C.  of  Cal., 
July,  1873. 

3  Mills  V.  Hoag,  7  Paige,  18  ;  Jolin- 

28 


son  V.  Everett,  9  Paige,  636  ;  Quack- 
enbusli  v.  Leonurcl,  10  Pai.  131  ; 
Dickinson  v.  Codwise,  11  Pai.  189  ; 
Stovall  V.  Banks,  10  Wall.  583. 


Chap.  I.]  NOT  FINAL.  §§25-27 

of  a  filial  decree,  and  the  plaintiff  was  not  permitted  to  set 
the  case  down  for  further  hearing,  so  as  to  liave  his  bill  of 
costs  put  in  the  decree.  1 

§  26.  Final,  if  requires  Delivery  of  Property. — Where 
the  assignee  of  a  bankrupt  filed  his  bill  in  equity  to  have 
the  deeds  of  certain  lands  and  slaves,  made  by  the  bank- 
rupt to  the  defendants,  set  aside,  and  to  have  the  lands  and 
slaves  delivered  to  the  assignee,  and  that  an  account  of  the 
profits  of  the  lands  and  slaves  be  taken,  and  that  such 
profits,  when  ascertained,  should  be  paid  over  to  the  as- 
signee, the  court  decreed  that  the  lands  and  slaves  be  de- 
livered to  the  assignee  and  by  him  sold,  and  that  the  account 
of  profits  be  taken.  From  this  decree  an  appeal  was  taken 
to  the  Supreme  Court  of  the  United  States,  where  a  motion 
was  made  to  dismiss  the  appeal,  because  the  decree  was 
interlocutory.  The  motion  was  denied.  The  court  said, 
that  when  a  decree  determined  the  right  to  property,  and 
directed  it  to  be  given  to  the  complainant,  or  to  be  sold  for 
his  benefit,  and  he  was  entitled  to  have  the  decree  carried 
into  immediate  effect,  it  was  final  within  the  mean- 
ing of  the  statute  authorizing  appeals  ;  and  that  if  no  appeal 
were  allowed  from  such  a  decree,  the  property  in  contro- 
versy could  be  sold,  or  otherwise  disposed  of,  and  thereby 
placed  so  completely  beyond  the  reach  of  the  defendants 
that  an  appeal  at  a  subsequent  stage  of  the  proceedings 
could  do  them  no  good.  ^ 

§  27.  Hot  Final. — It  seems  certain,  however,  that  if  the 
decree  under  consideration  in  the  above  case  had  simply 
determined  the  right  to  the  property  in  dispute,  without 
giving  directions  for  its  sale,  or  delivery  to  the  complain- 
ants, no  appeal  would  have  been  recognized  until  all  the 
issues  had  been  determined,  and  such  a  decree  entered  as 
would  have  completely  disposed  of  the  suit.^  A  decree 
final  in  other  respects  is  not  interlocutory  because  it  directs 


1  A  decree  is  final  wlaich  determines 
the  rights  of  property,  and  directs  a 
conveyance  to  be  made  at  a  futiwe 
d:xy.  Lewis  v.  Oultaus'  Admr.,  3  B. 
Monr.  453. 


2  Forgay  v.  Conrad,  6  How.  201. 
^Perkins  u.  Fourniquet,  G  How.  20G; 
Pullvain  v.  Christaiu,  6  Id.  209. 


29 


§§27-30  LAW  OF  JUDGMENTS.  [Cliap.    I. 

a  taxation  of  costs ;  ^  nor  because,  as  in  the  case  of  a  decree 
for  tlie  sale  of  mortgaged  premises,  subsequent  proceeding's 
under  direction  of  the  court,  are  necessary  to  execute  the 
decree.- 

g  28.  B^ust  be  Final  as  to  all  Defendants. — Tlio  order 
of  the  court  in  an  action  for  the  partition  of  real  estate, 
■which  determines  the  several  interests  of  the  parties  to  the 
action,  and  appoints  a  referee  to  make  a  partition  between 
them,  and  report  the  same  to  the  court,  is  not  a  final  judg- 
ment, even  against  a  party  whom  the  court  by  such  order 
determines  to  be  without  any  title. ^  A  decree  declaring  a 
legacy  void  as  to  one  defendant,  but  reserving  all  other 
questions  is  not  such  a  final  decree  as  may  be  appealed 
from.*  And,  as  a  general  rule,  a  judgment  determining  the 
rights  of  some  of  the  parties,  is  not  final  so  as  to  authorize 
an  appCcd  until  it  has  settled  the  rights  of  all  the  defend- 
ants.^ 

^  29.  An  Interlocutory  Decree  is  one  made  "pending 
the  cause,  and  before  a  final  hearing  on  the  merits.  A  final 
decree  is  one  which  disposes  of  the  cause,  either  by  sending 
it  out  of  the  court  before  a  hearing  is  had  on  the  merits,  or 
after  a  hearing  on  the  merits,  decreeing  either  in  favor  of 
or  against  the  prayer  of  the  bill."  But  no  order  or  decree 
which  does  not  preclude  farther  proceedings  in  the  case  in 
the  court  below,  should  bo  considered  final.  ^ 

§  30.  Test  of  Finality. —  A  decree  can  never  be  final 
until  the  party  in  whose  favor  it  is,  can  obtain  some  benefit 
therefrom  without  again  setting  the  cause  down  for  further 
hearing  before  the  court,  upon  the  equity  reserved  upon  the 
coming  in  and  confirmation  of  the  report  of  the  master,  to 


1  Craig  ■«.  Steamer  Hartford,  1  Mc- 
All.  91. 

sBrouson  v.  E.  K.  Co.,  2  Black, 
531;  Eayu. -Law,  3  Cranch,  179.  A 
decree  disposing  of  a  cause,  but  leav- 
ing the  exact  amount  duo  to  be  cal- 
culated by  the  master,  and  to  be  by 
Lim  reported  at  next  term,  is  final. 
Meek  v.  Mathis,  1  Pleisk,  53i. 


30 


3 Peck  V.  Vandenberg,  30  Cal.  11; 
Gates  V.  Salmon,  28  Cal.  320.  The 
law  has  been  changed  by  act  of  March 
23,  18G4. 

4  Chittenden  v.  M.  E.  Church,  8 
How.  Tr.  327. 

cllarrison  u.  Farnesworth,  1  Hcisk, 
751;  Delap  v.  Hunter,  Sueed,  101; 
Martin  v.  Crow,  28  Tex.  G14. 

6 Chouteau  V.  Pace,  1  Minn.  24. 


Chap.  I..J   ArPE.\xs  unnecessary  not  permitted.       §§30-33 

whom  a  reference  has  been  made,  to  ascertain  certain  facts 
which  are  absolutely  necessary  to  be  determined  before  the 
case  can  be  finally  disposed  of  by  the  conrt,  or  which  the 
chancellor  thinks  proper  to  have  ascertained  before  he  grants 
any  relief.  But  if  the  questions  which  can  arise  on  the  ex- 
ceptions to  the  master's  report  are  such  as  arc  merely  inci- 
dental to  the  carrying  of  the  decree  into  efiect,  it  is  final.  ^ 

§  31.  Intsrlocutory  Decrees. — A  decree  is  interlocutory 
which  makes  no  provision  for  costs,  and  in  which  the  right 
is  reserved  to  the  parties  to  set  the  cause  down  for  further 
directions  not  inconsistent  with  the  decree  already  made;= 
and  so  is  a  decree  which  contains  a  provision  for  a  refer- 
ence of  certain  matters,  and  that  all  further  questions  and 
directions  be  reserved  until  the  coming  in  of  the  report  of 
the  referee. 

Z  32.  Decree  foreclosing  Liens. — An  action  was  com- 
menced to  enforce  certain  liens  against  real  estate,  and  a 
judgment  therein  v,'as  entered  directing  that  a  sale  of  the 
premises  be  made,  and  that  from  the  proceeds  a  sum  speci- 
fied should  be  paid  to  discharge  one  of  the  liens,  and  that 
the  plaintiff  should  be  paid  an  additional  sum,  less  the 
amount  due  from  him  to  the  defendant  for  rent  of  the  prem- 
ises, and  that  a  reference  be  had  to  ascertain  the  amount  of 
such  rent.  An  appeal  was  taken  from  this  judgment.  The 
appellate  court,  on  motion  to  dismiss  the  appeal,  considered 
that  as  the  object  of  the  action  was  to  ascertain  to  whom 
the  whole  proceeds  to  be  derived  from  a  sale  of  the  prem- 
ises should  belong,  and  that  as  this  could  not  be  ascertained 
until  it  was  known  what  amount  ought  to  be  deducted  from 
the  plaintiffs  claims  for  rents,  the  judgment  entered  by  the 
court  below  was  not  a  final  judgment.^ 

§  33.  Appeals  Unnecessary  not  Permitted. — The  policy 
of  the  laws  of  the  several  States  and  of  the  United  States, 
is  to  prevent  unnecessary  appeals.  The  appellate  courts 
will  not  review  cases  by  piecemeal.     The  interests  of  liti- 


1  Johnson  r.  Everett,  9  Paige,  G38. 
sWilliamsou  v.  Field,  2  Barb.  Ch. 


281;  Harris  v.   Clark  ct  al.,  4  How. 
Pr.  78. 

3Thompkins  v.  Hyatt,  19  N.  Y.  535. 

31 


g^o3-35  LAW  OF  JUDGIirEXTS.  [Cliap.    I. 

gaiits  require  that  causes  sliould  not  be  promaturclj  brought 
to  the  liigher  courts.  The  errors  comphiinecl  of  might  be 
corrected  in  the  court  in  which  they  originated;  or  the 
party  injured  by  them  might,  notwithstanding  the  injury, 
have  fiual  judgment  in  his  favor.  If  a  judgment,  interk)cu- 
tory  in  its  nature,  were  the  subject  of  appeal,  each  of  such 
judgments  rendered  in  the  case  could  be  brought  before 
the  appellate  court,  and  litigants  harassed  by  useless  delay 
and  expense,  and  the  courts  burdened  with  unnecessary 
labor. 

g  34.  Judgment,  -when  Appealable. — The  general  rule 
recognized  by  the  courts  of  the  United  States,  and  by  the 
courts  of  most,  if  not  of  all  the  States,  is  that  no  judgment 
or  decree  will  be  regarded  as  final  within  the  meaning  of 
the  statutes  in  reference  to  appeals,  unless  all  the  issues  of 
law  and  of  fact  necessary  to  bo  determined  were  deter- 
mined, and  the  case  completely  disposed  of,  so  far  as  the 
court  had  power  to  dispose  of  it.  ^ 

§  35.  Exceptions. — But  owing  to  particular  circum- 
stances and  hardships,  the  courts  have  refused  to  dismiss 
appeals  from  some  judgments  which  did  not  completely 
dispose  of  the  cases  in  which  they  were  entered.  These 
judgments  determined  particular  matters  in  controversy, 
and  were  of  such  a  nature  that  they  could  be  immediately 
enforced,  and  by  their  enforcement  could  deprive  the  party 
against  whom  they  were  rendered,  of  all  benefits  whicli  he 
might  obtain  from  an  appeal  at  any  subsequent  stage  of  the 
proceedings.  -  To  avoid  the  necessity  of  being  called  iipon 
to  review  such  judgments,  the  suj)erior  courts  have  cautioned 
the  inferior  ones,  and  endeavored  to  impress  upon  them  the 
evils  resulting  from  the  practice  of  entering  interlocutory 
judgments  capable  of  being  at  once  enforced  against  a  party. 


iMcCollum  V.  Eager,  2  How.  U.  S. 
Gl;  Craighead  r.  Wilson,  18  Id.  I'J'J; 
Ayres  v.  Carver,  17  Id.  594;  Crawford 
V.  Points,  13  Id.  11;  Mordeeai  v. 
Lindsay,  19  Id.  200;  Montgomery  v. 
Anderson,  21  Id.  386;  Barnard  v. 
Gibson,  7  Id.G50;  Popiicr  u.  Duulap, 
5  Id.  51;  AViuu  v.  Jackson,  12  Wheat. 

32 


135;  The  Palmyra,  10  Id.  502;  Chace 
I'.  Vasquez,  11  Id.  429;  Hiriat  v.  Bal- 
lon, 9  Pet.  156;  Eutherford  i\  Fisher, 
4  Dall.  22;  Young  v.  Grundy,  6 
Cranch,  51. 

SMerlo    v.   Andrews,  4  Tex.    200; 
Stovall  V.  Banks,  10  Wall,  583. 


Chap.  I.] 


GENERAL  TEST. 


§§35-36 


and  doing  him  irretrievable  damage  before  a  final  judgment 
can  be  entered.  ^ 

§  36.  General  Test. — Owing  to  the  nnmberof  orders  or 
decrees  necessarily  entered  in  a  suit  in  equity  to  furnish  all 
the  relief  to  which  the  complainant  may  be  entitled,  the 
courts  have  been  frequently  obliged  to  determine  wdiich  is 
the  final  decree.  So  far  as  any  general  distinguishing  test 
can  be  gathered  from  the  numerous  decisions,  it  is  this: 
That,  if  after  a  decree  has  been  entered,  no  further  questions 
can  come  before  the  court,  except  such  as  are  necessary  to 
be  determined  in  carrying  the  decree  into  effect,  the  decree 
is  final  ;  otherwise  it  is  interlocutory.-  But  an  order  or 
decree  made  for  the  purpose  of  carrying  a  judgment  or  de- 
cree already  entered  into  effect,  is  not  a  final  judgment  or 
decree,  and  cannot  be  appealed  from  as  such.^ 


iBarnai'd  v.  Gilsou,  7  How.  C50; 
Forgay  v.  Conrad,  6  Id.  201.  The 
case  of  Martin  v.  Crow,  28  Tex.  C14, 
so  far  as  we  are  able  ta  understand  it, 
seems  to  denj'  the  right  of  appeal 
even  where  the  judgment  is  capable 
of  enforcem&nt  against  the  parties  to 
it.  The  suit  was  by  C.  against  A.  M., 
M.  M.,  and  L.  M.  Judgment  by  de- 
fault was  entered  against  M.  M.  and 
L.  M.,  and  the  cause  continued  for 
service  against  A.  M.  From  this 
juclgmeut  an'  appeal  was  taken,  but 
by  whom  does  not  appear.  In  con- 
sidering the  appeal,  the  court  said: 
"When  the  whole  of  the  matter  in 
controversy  is  finally  disiDosed  of  as 
to  all  the  parties,  then  there  is  a  final 


(3) 


judgment,  and  not  before ;  from  vv^hich 
an  appeal  or  writ  of  error  can  be 
taken."  But  as  there  are  intimations 
in  the  opinion  that  the  court  seemed 
to  be  considering  the  rights  of  A.  M., 
who  was  not  a  party  to  the  judgment, 
it  may  be  that  he  was  the  appellant. 
If  so,  the  general  language  of  the 
court  does  not  raise  any  conflict  with 
the  rule  of  the  cases  cited  above. 

3  Whiting  V.  Bank  of  U.  S.,  13  Pet. 
G.  Bronson  v.  R.  R.  Co.,  2  Black. 
524 ;  Ogilvie  v.  Knox  Ins.  Co.,  2 
Black.  539  ;  Humistou  v.  Stamthorii, 
2  Wall.  106. 

3  Callan  v.  May,  2  Black.  541  ; 
Smith  V.  Trabue's  Heirs,  9  Pet.  4. 

33 


g37  L.UY   OF  JUDGMENTS.  [Chap.  11. 


CHA.PTER  II. 

THE  ENTRY   OF   JUDGMENTS. 

9  37.  Importance  of. 

§  38.  Is  a  Jlinii-terial  Act. 

§  39.  A  Distiuction  between  Formal  Entry  of  Ju'?gments  and  Decrees. 

g  40.  The  Judgment  Cook. 

§  41.  Entry  in  Improper  Book. 

§42.  On  Verdicts. 

§  43.  Against  Joint  Parties. 

§  44.  Against  Joint  Contractors. 

§  45.  Construction  cf  Entry. 

§§  46    and  47 .  Form  of  Eutry. 

§  43.  Use  of  $. 

§  4Ga.  Judgment  in  Figures. 

§49.  rilling  Blanks. 

I§  50,  rA,  and  52.  iMsufBcient  Entries. 

§  53.  la  Justice's  Coiu'ts. 

§  53a.  Failure  of  Justice  to  Enter. 

§  54.  Reference  to  other  Cases. 

§  53.  On  Awards. 

OF  THE  ENTRY  OF  JUDGIIENTS. 

g  37.  Importance  of.  —  The  promptings  of  the  most 
ordinary  prudeuco  suggest  that  whatever,  iu  the  affairs  cf 
men,  has  been  so  involved  in  doubt  and  controversy  as  to 
require  judicial  investigation,  ought,  when  made  certain  by' 
a  final  determination,  to  be  preserved  so  by  some  permanent 
and  easily  understood  memorial.  Hence,  all  courts,  and  all 
tribunals  possessing  judicial  functions,  are  required  by  the 
■written  or  unwritten  law,  and  often  by  both,  to  reduce  their 
decisions  to  writing  in  some  book  or  record  required  to  be 
kept  for  that  purpose.  The  requirement  is  believed  to  be 
of  universal  application.  ^  So  that  if  any  judgment  or  de- 
cree of  any  court,  whether  of  record  or  not  of  record, 
whether  subordinate  or  appellate,  fails  to  be  entered  upon 
its  records,  the  failure  is  attributable  to  the  negligence  or 
inadvertence  of  its  of&cers,  and  not  to  the  countenance  and 
support  of  the  law. 


1  Meeker   v.  Van  Rensselaer,    15 
"Weud.  397  ;  Jones  v.  Walker,  5  Ycrg. 

34 


427  ;  Davidson  v.  Mnrpliy,  13  Conn. 
213  ;  Boker  t'.  Bronson,  5  Bl.  C.  C.  5. 


Cliax^.    II.]  JUDGMENTS  AND   DECREES.  gg38-39 

§  38.  Ministerial  Act. — Expressions  occasionally  find 
their  way  into  reports  and  text-books,  indicating  that  the 
entry  is  essential  to  the  existence  and  force  of  the  judgment. 
These  expressions  have  escaped  from  their  authors  when 
writing  of  matters  of  evidence,  and  applying  the  general 
rule  that  in  each  case  the  best  testimony  which  is  capable 
of  being  produced  must  be  received,  to  the  exclusion  of 
every  means  of  proof  less  satisfactory  and  less  authentic. 
The  rendition  of  a  judgment  is  a  judicial  act ;  its  entry  upon 
the  record  is  merely  ministerial.'  A  judgment  is  not  what 
is  entered,  but  what  is  ordered  and  considered.  -  The  entry 
may  express  more  or  less  than  was  directed  by  the  court,  or 
it  may  be  neglected  altogether  :  yet,  in  neither  of  these 
cases  is  the  judgment  of  the  court  any  lesstts  judgment  than 
though  it  was  accurately  entered.  lu  the  very  nature  of 
things,  the  act  must  be  perfect  before  its  histoiy  can  be  so; 
and  the  imperfection  or  neglect  of  its  history  fails  to  modify 
or  obliterate  the  act.  That  which  the  court  performs 
judicially,  or  orders  to  be  performed,  is  not  to  be  avoided 
by  the  action  or  want  of  action  of  the  judges  or  other 
officers  of  the  court  in  their  ministerial  capacity.  In  the 
case  of  judgments,  they  must  Jlrst  be  entered  upon  the 
record  before  they  are  admissible  as  evidence  in  other 
courts.^  For  this  purpose  they  are  not  otherwise  perfect. 
The  record,  if  not  made  up,  or  if  lost  or  destroyed,  should 
be  perfected  or  replaced  by  appropriate  proceedings  in  the 
court  where  the  judgment  was  pronounced. 

g  39.  Distinction  between  Judgments  and  Decrees. — 
In  respect  to  the  entry  of  judgments  and  of  decrees  upon 
the  record,  and  the  consequent  effect  of  their  want  of  entry, 
as  affecting  their  admissibility  as  evidence  in  other  cases, 
there  seems  to  be  this  radical  difference.  A  judgment  can 
speak  but  by  the  record.  A  decree  in  the  absence  of  any 
statute  or  provision  to  the  contrary,  takes  effect  immedi- 
ately after  being  pronounced  by  the  court.  Its  enrollment 
adds  nothing  to  its  force,   nor  to  its  competency  as  evi- 


''Matthews  t).  Hongliton,  11  Maine, 
377;  Fish  v.  Emerson,  M  N.  Y. 
376. 


2 Davis  V.  Shaver,  1  Phill.  N.  C  18. 
3  Hall  V.  Hudson,  20  Ala.  284. 

35 


§§39-40 


LAW   OF  JUDGMENTS. 


[Chap.  II. 


dence.  i  This  distinction  arose  from  the  differences  in  the 
proceedings  at  law  and  in  equity.  It  is  inherent  in  the 
nature  of  the  two  systems.  Though  the  code  declares  in 
general  terms  that  there  shall  bo  but  one  form  of  action, 
and  thereb}^  in  a  general  manner,  attempts  to  abolish  the 
distinctions  before  existing  in  the  pursuit  of  legal  and  of 
equitable  remedies,  it  has  done  little  by  the  attempt.  The 
necessity  for  the  recognition  of  equitable  rights,  and  for 
granting  equitable  relief,  continues  as  before  the  adoption 
of  the  code.  The  proceedings  occasioned  by  this  necessity 
are  substantially  as  they  were  under  the  old  system.  Among 
the  rules  of  the  old  system,  not  abrogated  by  the  new  one,  is 
the  one  that  a  decree  pronounced  by  the  court  and  reduced 
to  writing,  is  admissible  in  evidence,  independent  of  the  fact 
of  its  enrollment  or  entry  in  the  judgment  book.^ 

^  40.  In  Judgment  Eoo^i. — The  code  requires  the  keep- 
ing of  a  judgment  book  by  the  clerk,  in  which  every  judg- 
ment must  be  entered.^  In  no  case  ought  this  requirement 
to  be  dispensed  with.  It  applies  as  well  where  the  decision 
of  the  judge  is  made  in  writing  and  filed  as  in  any  other 
case.*  The  authority  of  the  clerk  to  make  this  formal 
entry  is  founded  on  a  judgment  already  valid,  and  whose 
validity  is  not  destroyed  by  his  failure  to  enter  it.  A  judg- 
ment drawn  up  in  the  form  in  which  it  was  intended  to  be 
entered,  signed  by  the  judge,  and  filed  in  the  cause,  is  the 
judgment  of  the  court  at  that  time  and  of  that  term, 
although  execution  should  not  be  issued  upon  it  then.^ 
The  action  of  the  clerk,  being  non-judicial,  may  take  place 
at  any  time  afterward.  The  usual  custom,  perhaps,  is  for 
him  to  wait  for  leisure  moments  to  perform  this  duty.     In 


1  Bates  V.  Delevan,  5  Paigo,  Ch. 
303;  "Winaus  v.  Durham,  5  Weud.  47; 
Butler  V.  Lee,  3  Keyes,  73.  But  in 
Canada,  the  decree  must  bo  entered 
in  the  register's  book,  and  all  pro- 
ceedings based  thereon,  and  taken 
before  such  entry,  are  irregular  and 
voidable.  Drummond  v.  Anderson,  3 
Grant's  Ch.  151. 

^Lynch  v.  Home  Gas  Light  Co.,  42 
Barb.  GDI. 

3G 


3N.  Y.  Code,  §§279,  280;  Cal.  Pr. 
Act,  §201;  Cal.  C.  C.  P.  §668. 

4S.  &  S.  Plank  Boad  Co.  v.  Thatch- 
er, 6  How.  Pr.  226. 

5  Casement  v.  Ixinggold,  28  Cal.  335; 
MoMillan  v.  Eiehards,  12  Cal.  467. 
The  omission  of  the  clerk  to  sign  a 
decree,  is  at  most  a  mere  irregularity 
which  does  not  vitiate  the  judgment. 
Hotchkiss  u.  Cutting,  14  Minn.  542; 
Jorgcnson  v.  Griffin,  14  Minn.  4CG. 


Chap.   II.]  ON  VEKDICTS.  §§^0-42 

many  cases  the  record  is  not  completed  until  after  the 
adjournment  of  the  term.  And  this  practice  seems  to  have 
prevailed  at  common  law.^  As  the  judgment  is  final  before 
its  formal  entry  in  this  book,  a  statute  providing  that  an 
appeal  may  be  perfected  within  a  specified  time  from  the 
"rendition  "  of  the  judgment,  certainly  commences  to  run 
from  the  time  of  the  drawing  up  and  signing  of  the  judg- 
ment, and  filing  it  among  the  papers  in  the  case.-  The 
language  used,  in  the  opinion  of  the  court,  in  the  case  of 
Genella  v.  Rehjea,  cited  above,  tliough  not  necessary  to  the 
decision  of  that  case,  is  worthy  of  citation  as  founded  upon 
reason.  It  indicates  that  the  time  for  appeal  begins  to 
run,  though  no  judgment  be  filed.  "The  court  announced 
its  judgment,  and  the  order  for  judgment  was"  entered  in 
the  minutes  of  the  court  on  the  fifteenth  of  August,  1865. 
The  judgment  was  therefore  rendered  and  the  time  for  tak- 
ing an  appeal  commenced  to  run  on  that  day." 

§41.  Use  of  Improper  Book. — If,  as  in  California,  ^  the 
clerk  is  required,  in  addition  to  the  judgment  book,  to  keep 
a  "  Register  of  Actions,"  and  he,  neglecting  to  keep  the 
first  named,  copies  the  judgments  into  the  latter,  they  are 
not  therefore  invalid.  The  substantial  purpose  of  the 
statute  is  accomplished,  although  the  two  books  are  united. 
No  harm  results  to  any  one  from  this  union.  "^  But,  inde- 
pendent of  the  considerations  named,  the  judgments  should 
be  sustained.  If,  as  the  authorities  state,  judgments  are 
valid  when  not  entered  in  any  book,  they  surely  ought  to 
be  equally  valid  if  entered  in  some  record  of  the  court, 
though  not  in  the  one  designed  for  that  purpose. 

§  42.  On  Verdicts. — The  Code  of  Civil  Procedure  in 
California,  5  requires  the  clerk  to  enter  judgment  in  con- 
formity to  the  verdict,  within  twenty-four  hours  after  the 
rendition  of  the  verdict,  unless  the  court  order  the  case  re- 
served for  further  consideration,  or  grant  a  stay  of  proceed- 


1  Osborne  v.  Toomer,  6  Jones  Law 
IL440. 

3  Gray  V.  Palmer,  28  Cal.  416;  Ge- 
nella i\  Eelyea,  32  Cal.  159. 


3Cal.  C.  C.  P.  ^  l,C5-2;  Pr.  Act, 
§  -528. 

4  Jorgensen  u.  Griffin,  14  Minn.  464. 

5 Cal.  Pr.  Act,  v^  197;  Cal.  C.  C.  P. 
§G64. 

37 


^^42-1-3  LAW   OF  JUDGMENTS.  [Cliap.    II. 

ings.  Unless  there  is  doubt  as  to  wliat  judgment  is  proper, 
the  better  practice  is  to  euter  it  at  once.  The  judgment 
may  as  well  be  set  aside  as  the  verdict.  Therefore  such 
proceedings  as  may  be  appropriate  to  securing  a  new  trial, 
or  any  other  right  of  the  losing  party,  can  be  prosecuted  as 
advantageously  upon  granting  a  stay  of  proceedings  upon 
the  judgment  as  upon  the  verdict.  The  immediate  entering 
of  judgment  authorizes  the  making  up  of  the  judgment  roll, 
and  thus  secures  a  lien  on  the  judgment  debtor's  real  estate. 
To  this  security  he  is  at  once  justly  entitled.  If  the  court 
delays  in  granting  it  to  him,  he  may,  during  the  stay  of 
proceedings,  be  deprived  of  the  fruits  of  his  litigation.^ 

§  43.  Joint  Parties. — At  common  law,  in  a  joint  action, 
whether  upon  a  joint  or  a  joint  and  several  contract,  or 
upon  several  distinct  contracts,  the  general  rule  was,  that 
there  could  be  no  judgment  except  for  or  against  all  of  the 
defendants.  To  this  rule  the  exceptions  were,  first,  in  the 
case  where  one  or  more  of  the  defendants,  admitting  the 
contract,  established  a  discharge  therefrom,  as  by  bank- 
ruptcy; second,  where  some  one  of  the  defendants  plead 
and  proved  that  he  was  incapable  of  contracting,  when  the 
alleged  contract  was  made,  from  some  disability,  as  infancy. 
So  unyielding  was  the  rule,  that  when  one  of  the  defendants 
suffered  a  default  or  confessed  the  action,  ^no  judgment 
could  be  given  against  him,  if  his  co-defendant  succeeded 
in  maintaining  some  defense  affecting  the  entire  contract.  ^ 
Codes  of  Procedure,  adopted  in  several  of  the  States,  ^  have 
abolished  this  rule  by  enacting  that  judgment  may  ho  given 
for  or  against  "  one  or  more  of  several  plaintiffs,  and  for  or 
ao^ainst  one  or  more  of  several  defendants;"  and  "that  in 
an  action  against  several  defendants,  the  court  may,  in  its 
discretion,  render  judgment  against  one  or  more  of  them, 
leaving  the  action  to  proceed  against  the  others  whenever  a 
several  judgment  is  proper."     Under  these  sections,  of  two 


1  Hutchinson  v.   Bours,  13  Cal.  50. 

sTaylor  u.  Beck,  3  Rand,  31G;  Cole 
V.  Pennel,  2  Band,  174;  Steptoe  v. 
Bead,  19  Graut,  1 ;  Woodward  v.  New- 
hall,    1  Pick.   500;    Minor  v.   Mech. 

Bank,  1  Pet.  4G;  Babcr  v.   Cook,   11 

o 
O 


Leigh,  GOG;  Bohr  v.  Davis,  9  Leigh, 
30. 

3Cal.  Pr.  Act,  §  145,  14G;  Cal.  C. 
C.  P.  578,  579;  N.  Y.  Code,  ^  274; 
Code  of  Wis.  §  184. 


38 


Chap.    II.]  JOINT  CONTRACTORS.  ,gg43_4j. 

persons  sued  jointly,  one  may  obtain  a  judgment  against 
the  phiintiff,  and  tho  other  be  subjected  to  a  judgment  in 
the  plaintiff's  favor. ^  And,  in  general,  a  several  judgment 
may  be  properly  rendered  whenever  a  several  action  can  be 
sustained.-  In  California,  in  an  action  against  two  or 
more,  a  judgment  may  be  entered  against  tho  defendants  in 
court,  excluding  those  not  ajipearing  and  upon  whom  sum- 
mons had  not  been  served,  though  the  contract  appears  to 
be  jointly  binding  on  all  of  the  defendants.  ^  The  practice 
is  otherwise  in  New  York;  and  that  sanctioned  by  the  Cali- 
fornia cases  is  spoken  of  in  terms  of  strong,  and,  as  it  seems 
to  us,  merited  condemnation.  The  plaintiff  cannot,  under 
the  code,  deprive  the  defendant  of  the  advantage  of  having 
his  joint  co-contractors  united  with  him  in  the  action,  and 
their  property,  as  well  as  his,  made  liable  for  the  judgment. 
Still  less  ought  .the  plaintiff  to  be  tolerated,  in  making  all 
the  co-contractors  parties,  for  the  purpose  of  avoiding  a 
plea  in  abatement;  and  afterwards,  without  leave  of  the 
court,  or  notice  to  the  defendant  served,  dropping  the 
unserved  defendants  from  the  judgment.*  Every  judg- 
ment against  any  joint  defendant,  is  irregular  until  the 
other  is  out  of  the  action  and  the  issues  against  him  dis- 
posed of.  Until  then,  he  has  the  right  to  appear  at  every 
trial  of  the  issues.^  One  of  the  joint  defendants  sued  on  a 
joint  liability  having  answered,  no  judgment  can  be  taken 
against  those  in  default,  until  the  issues  formed  by  the  an- 
swer are  disposed  of. " 

§  44.  Joint  Contractors. — Upon  serving  summons  in  a 
joint  action,  upon  one  or  more  defendants  jointly  indebted 
upon  a  contract,  the  plaintiff  may,  under  the  code,  proceed 
against  the  defendants  served,  unless  the  court  direct  other- 
wise; and  if  he  recover,  the  judgment  maj  be  entered 
against  all  the  defendants  shown  to  be  thus  jointly  indebted, 


1  Kowe  V.  Chandler,  1  Cal.  1G7; 
Parker  v.  Jackson,  16  Barb.  33. 

2  Harrington  v.  Higbam,  15  Barb. 
521;  Van  Ness  u.  Corkins,  12  Wis.  18G; 
Crjndall  v.  Beaeb,  7  How.  P.  271. 

3Iugrabam  i'.  Gildemeester,  2  Cal. 
88;  Ilirseblield  v.  Franklin,  G  Cal.  GG7. 


4Niles  V.  Battersball,  27  How.  P. 
381;  Sager  v.  Nichols,  1  Dalj',  1; 
Fowler  v.  Konucdy,  2  Abb.  P.  3i7. 

s  Brown  v.  Pdchardsou,  i  Fiobt.  6C3. 

eCatlin  v.  Latson,  -1  Abb.  P.  2-48. 


39 


§g4-l-45,  LAW  OF  JUDGMENTS.  [Chap.    II. 

SO  fur  only  that  it  may  bo  enforced  against  the  joint  prop- 
erty of  all,  and  the  separate  property  of  those  served.  ^ 
This  provision  is  not  applicable  to  a  proceeding  to  fore- 
close a  mortgage,  and  obtain  a  decree  for  the  sale  of  the 
premises  mortgaged.  The  fact  that  two  persons  have 
joined  in  the  mortgage,  does  not  create  a  presumption 
that  the  property  therein  described  is  owned  by  them 
jointly.  2 

§  45.  Construction. — If  no  date  appeared  upon  a  judg- 
ment, it  vras  presumed,  at  common  law,  to  be  entered  on 
the  first  day  of  the  term  ab  which  it  was  rendered.  The 
rule  is  different  in  some  of  the  United  States,  as  in  Maine, 
Massachusetts  and  New  Hampshire,  wh-ere  the  rendition  is 
supposed  to  have  occurred  at  the  last  day  of  the  term,  un- 
less the  contrary  appears.-''  Including  in  a  judgment  one 
who,  though  named  as  a  party  to  the  suit,  never  appeared 
therein,  and  as  to  whom  the  process  was  returned  not  found, 
has  been  regarded  as  a  mere  clerical  error,  neither  affecting 
the  party  thus  included,  nor  furnishing  any  ground  for  a 
reversal  in  the  appellate  court.'  On  the  other  hand,  an  ap- 
peal has  been  esteemed  the  appropriate  remedy  for  the  cor- 
rection of  a  similar  error.  ^  This  is  doubtless  the  better 
opinion.  And  in  those  States  where  the  presumptions  in 
favor  of  the  jurisdiction  of  courts  of  record,  are  liberally 
indulged  and  applied,  a  party  to  a  suit  who  considered  the 
unauthorized  addition  of  his  name  in  the  entry  of  the  judg- 
ment as  a  clerical  error  not  requiring  attention,  and  who 
failed  to  correct  it  in  some  manner,  would  be  in  imminent 
peril  of  such  proceedings  as  should  leave  liim  to  regret  his 
misapprehension  and  neglect.  The  entry:  "  This  day  came 
the  parties  by  their  attorneys,  and  the  plaintiff  enters  a 
refraxif,"  will  not  bo  construed  as  importing  that  the  plaintiff 
did  not  come  in  person  as  well  as  by  his  attorney.  On  the 
other  hand,  it  will  be  presumed,  in  support  of  the  judgment, 
that  as  the  attorney  was  incompetent  to  enter  a  retraxit,  that 


iCal.  Pr.  Act,   ^  32;  Cal.  C.  C.  P. 
413;  N.  Y.  Code,  ^S  13G. 

sBowen  v.  May,  12  Cal.  318. 
3Chase  v.  Gilman,  15  Maiae,   04; 

40 


Herring  v.  Polley,  8  Mass.  113;  Good- 
all  V.  Harris,  20  N.  H.  3G3. 

■*Savage  r.  Walshe,  2G  Ala.  G19. 

sjoyce  r.  O'Toolo,  G  Bush.  Ky.  31; 
Kuby  V.  Grace.  2  Duv.  540. 


Chap.  II.] 


FORM. 


§§45-4G 


the  plaintiff  personally  made  the  entiy.^  If  the  entry  of  a 
judgment  be  so  obscure  as  to  not  express  the  final  deter- 
mination with  sufficient  accuracy,  reference  may  be  had  to 
the  pleadings  and  to  the  entire  record.  If,  -with  the  light 
thrown  upon  it  by  them,  its  obscurity  is  dispelled,  and  its 
intended  signification  made  apparent,  it  will  be  upheld  and 
carried  into  effect.  ^ 

§  46.  Form. — At  common  law,  the  judgment  or  sen- 
tence of  law  commenced  with  "it  is  considered  by  the 
court  that  plaintiff  or  defendant  recover, "  etc.  Those  words 
were  considered  peculiarly  appropriate,  as  involving  and 
expressing  the  idea  that  what  was  about  to  be  ordered  was 
not  the  sentence  of  the  judges  but  of  the  law.  They  came 
to  be  inseparably  associated  in  the  minds  of  lav/yers  with 
the  entry  of  a  judgment.  The  chief  stress  was  laid  upon 
the  word  "considered."  In  Arkansas,  the  insertion  of  "or- 
dered and  resolved"  in  the  place  ordinarily  occupied  by 
"considered,"  was  held  to  make  the  entry  a  nullity.^  No 
judgment,  according  to  the  view  then  taken,  had  been  en- 
tered. No  objection  was  made  to  the  words  as  ambiguous, 
or  as  in  any  way  failing  to  designate  the  ' '  sentence  "  or  final 
determination  of  the  court.  But  the  words  used,  it  was 
thought,  did  not  import  that  the  law  had  acted  or  spoken  in 
the  matter,  and  the  case  was  sent  back  to  the  subordinate 
court,  to  await  the  time  when  the  law  should  speak  in  stereo- 
t^'ped  language.  This  view  was  hypercritical  in  the  ex- 
treme. No  authority  iu  support  of  it  was  cited,  except  the 
general  statement  in  Blackstone's  Commentaries,  that  the 
language  of  a  judgment  is  not  that  "it  is  resolved  or  de- 
creed," but  that  "it  is  considered."  Some  years  later,  the 
same  court  came  to  consider  a  judgment  commencing  with 
"it  is  therefore  ordered,  adjudged  and  decreed."^  The 
former  decision  was  left  unchanged,  with  an  intimation  that 
it  was  probably  correct.     But  the  three  words,   "ordered, 


iThomason  v.  Odum,  31  Ala.  108;   Foot  v.  Glover,  4  Blackf.  313;  Bell  v. 


Conk  V.  Lowtlier,  1  L'd  Eaym.  597. 

sFowlerv.  Doyle,  16  Iowa,  534;  Fin- 
nagan  v.  Manchester,  12  Iowa,  521  ; 


Mossej',  14  La.  An.  831. 

=Baker  v.  The  State,  3  Pike,  Ark. 
401. 

■^Ware  v.  Pennington,  15  Ark.  226. 

41 


^§4G-47  LAW   OF  JUDGMENTS.  [Cliap.    II. 

acljudgecT  and  decreed,"  were  said  to  bo,  when  united,  equiv- 
alent to  "considered,"  and  the  judgment  was  sustained. 

§  47.      Form. — Whatever  may  have  been  requisite  for- 
merly, it  is  evident  that  the  sufficiency  of  the  writing  claimed 
to  be  a  judgment  must,  at  least  under  the  code,  be  tested 
by  its  substance  rather  than  by  its  form.     If  it  corresponds 
with  the  definition  of  a  judgment,  as  established  by  the 
code ;   if  it  appears  to  have  been  intended  by  some  compe- 
tent tribunal  as  the  determination  of  the  rights  of  tiie  par- 
ties to  an  action,  and  shows  in  intelligible  language  the 
relief  granted,  its  claim  to  confidence  will  not  bo  lessened, 
by  a  want  of  technical  form,  nor  by  the  absence  of  language 
commonly  deemed  especially  appro2)riate  to  formal  judicial 
records.     The  entry  of  a  judgment,  like  every  other  com- 
position, should  be  comprised  of  those  words  which  will 
express  the  idea  intended  to  bo  convoyed,  with  the  utmost 
accuracy.     It  should  also  be  a  model  of  brevity,  and  should 
contain  no  unnecessary  directions.      The  forms  in  use  at 
common  law,  answer  these  requirements  so  well,  that  little 
or  nothing  can  be  gained  by  departing  from  them.     Wher- 
ever the  code  renders  the  insertion  of  matters  formerly  re- 
quired in  a  judgment  or  decree  unnecessary,  the  practice 
should  conform  to  the  law  now  in  force  rather  than  to  that 
which  is  abolished.     For  instance,  judgments  foreclosing 
mortgages  should  follow  the  directions  of  the  Code  of  Pro- 
cedure in  the  State  wherein  the  judgment  is  entered,'  in 
preference  to  the  old  forms  of  chancery  practice.      They 
should  contain  only  a  statement  of  the  amount  due  to  the 
plaintifT,  a  designation  of  the  defendants  liable  personally, 
and  a  direction  that  the  premises,  or  so  much  thereof  as 
shall  be  necessary,  be  sold  according  to  law,  and  the  pro- 
ceeds applied  to  the  payment  of  the  judgment  and  costs. 
The  copying  into  the  decree  of  the  directions  of  the  statute, 
adds  nothing  lo  the  clearness  or  force  of  these  directions. 
All  that  part  providing  for  the  report  of  the  sheriff,  the  con- 
firmation of  the  sale,  who  may  become  purchasers,  and  their 
rights  j)ending  the  time  for  redemption,  the  execution  of  a 
conveyance  if  no  redemption  be  made,  the  delivery  of  pos- 

1  Cal.  rr.  Act,  ^V2iG;  Cal.  C.  C.  P.  $  726. 
42 


Chap.    II.]  FILLING  BLANKS.  §§47-49 

session,  the  docketing  of  the  judgment  for  any  deficiency 
remaining  after  sale,  accomplishes  no  better  purpose  than 
to  encumber  the  record.^ 

§  48.  Use  of  $. — In  actions  to  enforce  the  payment  of 
taxes,  the  insertion  of  numerals  without  any  mark  to  desig- 
nate what  they  were  intended  to  represent,  has,  in  at  least 
one  State,  2  been  held  to  leave  the  judgment  fatally  defect- 
ive. A  similar  decision  appears  in  the  reports  of  the 
Supreme  Court  of  the  United  States  ;  but  "it  was  made 
in  a  case  where  that  court,  as  stated  in  its  opinion,  con- 
sidered itself  bound  by  the  decisions  of  the  Illinois  covirts. 
On  the  other  hand,  the  highest  court  in  another  State  has 
determined  that  a  verdict  and  judgment  are  presumed  to  be 
for  the  things  or  the  denomination  of  currency  sued  for, 
rather  than  for  something  else,  and  that  a  judgment  for 
"525"  upon  a  complaint  claiming  "$525,"  must  be  con- 
strued as  being  for  the  same  denomination  of  money  named 
in  the  complaint,  and  therefore  not  void  for  uncertainty,  ^ 
and  this  view  seems  to  be  supported  by  the  rule  that  a 
judgment  must  be  construed,  in  case  of  obscurity,  with  the 
aid  of  the  pleadings  and  of  the  entire  record. 

§  48a.  A  Jiidgment  Expressed  in  Figures. — As  to  its 
amount,  these  figures  being  in  connection  Vv-ith  a  dollar 
mark,  was  objected  to,  on  the  ground  that  the  statute  re- 
quired judicial  records  to  be  written  in  the  English  lan- 
guage ;  but  the  court  was  not  disposed  to  hold  that  the 
defect  was  of  a  character  to  render  the  judgment  absolutely 
void  and  of  no  avail  in  a  collateral  proceeding.^ 

§  49.  Filling  Blanks. — A  court  ordered  judgment  to  be 
entered  upon  a  promissory  note,  directing  the  clerk  to  com- 
pute the  amount  due.  He  made  the  entry,  leaving  blanks 
for  the  amounts.  Fourteen  months  after  he  filled  the  blanks 
by  inserting  the  j)roper  sums.     This,  it  was  decided,  might 


1  Leviston  v.  Swan,  33  Cal.  480. 

3  Lane  v.  Bommelmau,  21  111.  143; 
Lawrence  r.  Fast,  20  111.  33S-;  P.  F. 
W.  &  C.  E.  E.  V.  Chica JO,  53  111.  tO  ; 
A  judgment  intbcUuited  States  should 


be  for  dollars  and  cents,  and  not  for 
francs,  or  any  other  foreign  currency. 
Erlanger  i'.  Avegno,  24  La.  An.  77. 

a  Carr  v.  Anderson,  24  Miss.  ISS. 

i  Fallcrtou  v.  K.llih<-v,  48  Mo.  542. 
43 


§^49-51  LAW   OF  JUDGMENTS.  [Cliap.  II. 

be  such  an  irregularity  as  could  bo  reached  by  a  writ  of 
error,  but  it  was  not  available  against  the  judgment  in  a 
collateral  action.^ 

g  50.  Sufficiency  of  Entries. — It  now  remains  in  this 
chapter  to  note  some  of  the  decisions  in  which  the  sufficiency 
of  various  entries  of  judgments  have  been  mooted  and  de- 
termined. The  cases  are  not  altogether  consistent.  This 
arises,  perhaps,  from  the  fact  that  some  minds  are  deeply 
impressed  with  the  importance  of  matters  of  form,  and 
actuated  by  the  dread  of  encouraging  a  loose  and  unlawyer- 
like  practice  ;  while  others,  pajnng  little  regard  to  technical 
considerations,  are  inclined  to  recognize  and  enforce  that 
which,  though  confessedly  informal,  is  capable  of  being 
readily  understood  and  carried  into  effect.  I  think,  how- 
ever, that  from  the  cases,  this  general  statement  may  be 
safely  made  :  That  whatever  appears  upon  its  face  to  be 
intended  as  the  entry  of  a  judgment,  will  be  regarded  as 
sufficiently  formal,  if  it  show :  1st.  The  relief  granted,  and 
2d,  that  the  grant  was  made  by  the  court  in  whose  records 
the  entry  is  written.  In  specifying  the  relief  granted,  the 
parties  of  whom  and  for  whom  it  is  given,  must,  of  course, 
be  sufficiently  identified. 

§  51.  "I  give  judgment."  These  words,  if  the  parties 
are  made  certain  and  the  amount  ascertained  by  other  parts 
of  the  judgment,  are  as  effective  as  :  "It  is  considered  that 
plaintiff  recover,"  etc."  "  Whereupon  the  court  orders  that 
plaintiff"  pay  the  costs  of  suit,  and  that  execution  issue 
therefor"  in  a  record  showing  the  trial  by  a  jury  and  a  ver- 
dict for  the  defendants,  though  not  in  technical  language, 
is  sufficient  to  constitute  a  valid  judgment.^  "  We  should 
not  hesitate  to  enforce  a  judgment  because  '  decreed'  or  're- 
solved' was  used  instead  of  '  considered.' "  *  "No  judgment 
will  be  reversed  for  the  use  of  inappropriate  or  untechnical 
words. "'^  "  No  particular  form  is  required  in  the  proceed- 
ings of  a  court,    to  render  their  order  a  judgment.     It  is 


1  Lind  V.  Adams,  10  Iowa,  39S. 

2  Deadrich  v.   Harrington,  Hemp. 
50. 


3  Ilnntington  v.  Blakcncy,  1  Wasli. 
Ter.  129. 

4  Taylor  v.  Euuyan,  3  Clarke,  474. 

5  Minkhart  v.  Haukler,  I'J  111.  47. 


Chap.    II.]  SUFFICIENCY   OF  ENTEIE3.  §^51-52 

sufficient  if  it  is  final,  and  the  party  may  bo  injiired."^  "A 
judgment,  in  addition  to  the  ordinaiy  circumstances  of  time 
and  place,  should  exhibit  the  parties,  the  matters  in  dis- 
pute, and  the  result,  but  the  form  is  immaterial."  - 

§  52.     The  entry  must  not  only  indicate  -what  adjudication 
took  place,  but  should  also  appear  to  have  been  intended  as 
the  entry  of  judgment,  and  not  as  a  mere  memorandum  by 
the  aid  of  which  the  formal  record  was  to  be  constructed. 
"June  14,  1838,  judgment  sec.  reg.  for  want  of  plea.     Jan- 
uary 9,  1839,   sum  ascertained  at  $155.07.     Interest  from 
June  14,  1838."     This  writing,  being  offered  as  evidence  of 
a  judgment,  was  rejected,  on  the  grounds  that  there  was 
nothing   to   show   by   whom  judgment   was   rendered,    or 
against  whom,  nor  for  what  amount,  if  in  fact  any  judgment 
had  ever  been  given  by  any  court  against  any  person.^     It 
is  obvious,  that  in  some  of  the  cases,  the  entry  offered  in 
evidence  has  been  disregarded,  not  from  or  on  account  of 
the  absence  of  the  essential  elements  of  a  judgment  record, 
but  because  the  court  thought  that  such  entry  had  been 
originally  designed  as  nothing  but  a  brief  direction  to  the 
clerk,  or  as  a  certificate  made  by  the  clerk  of  some  judg- 
ment already  formally  put  upon  the  record.     Thus  "  Judg- 
ment rendered  for  plaintiff  in  the  above  entitled  suit  at  the 
above  named  term  by  the  court  for  the  sum  of  seventy-eight 
and  yjjV  dollars,  damages,  and  his  costs  of  suit  against  said 
defendant,  on  motion,"  was  determined  not  to  be  the  entry 
of  a  judgment.     These  words  certainly  show  the  action  of 
the  court,  the  nature  and  extent  of  the  relief  granted,  and 
the  parties  of  whom  and  for  whom  it  was  awarded.     So  far 
they  are  appropriate  to  the  record  of  a  judgment;  but  they 
do  not  appear  to  be  the  direction  of  the  court  itself.    On  the 
contrary,  they  seem  rather  to  be  the  certificate  of  the  clerk 
of  certain  events  transpiring  in  court,  as  he  recollects  them, 
or  as  he  understands  them  from  such  information  as  he  may 
possess,  than  the  original  record  of  the  court  in  relation  to 
those  events.*     The  words  "judgment  on  verdict  for  !:'3,000 


iWcllst).  Hogan,  Breese,  337;  John- 
son V.  Gillett,  52  Til.  3u0. 

sOrdiuai-y  v.  McClure,  1  Eailey,  7. 


sTiiylorv.  Kunyan,  3  Clarke,  47-1. 
4  Wheeler  v.  Scott,  3  Wis.  302. 

45 


'MM 


'§§52-53  LAV7  0?  JUDGMENTS,  [Chap.   II. 

and  costs,"'  fcliougli  found  among  the  records  and  showing^ 
as  they  certainly  do,  that  a  final  determination  had  been 
made,  are  not  the  record  of  a  judgment.  They  neither  show 
what  authority  directs  nor  how  the  direction  is  to  be  carried 
into  effect.  They  are  apparently  intended  as  a  mere  mem- 
orandum for  the  information  of  the  clerk.'  The  following 
entry  was  also  rejected,  on  a  plea  of  mil  tlel  record,  as  im- 
plying at  most  only  a  minute  of  proceedings,  and  aiot  the 
solemn  act  of  the  court  determining  the  rights  of  the  par- 
ties: "The  following  jury  was  sworn  and  impanelled"  (here 
follow  twelve  names),  "who  find  all  the  issues  in  favor  of 
the  plaintifi;  and  assess  his  damages  at  five  hundred  and 
ei"-hty-five  dollars.  Judgment  at  September  term,  1844, 
$585;  the  costs  arising  in  this  suit  due  to  the  county,  to 
witnesses  and  officers  of  court,  is  $134.92."" 

§  53.  Justices'  Courts. — Though  the  nature  of  a  final 
adjudication  in  a  justice's  court  is  in  no  respect  different 
from  that  of  a  court  of  record,  several  causes  uniting  liaA^e 
produced  rules  of  construction  by  which  the  records  of  the 
former  court  are  scrutinized  with  less  severity  than  those  of 
the  latter.  In  the  first  place,  the  higher  courts  being  pre- 
sided over  by  men  of  learning,  and  supplied  with  officers 
whose  sole  duties  consist  in  keeping  the  various  papers  filed 
in  court  in  proper  place  and  condition,  and  in  reducing  the 
various  orders  and  directions  of  the  judges  to  writing  upen 
records  required  by  law  for  that  purpose,  a  loose  memoran- 
dum would  naturally  be  viewed  with  distrust  when  offered 
as  the  final  result  of  all  this  learning  and  formality.  Its 
form  at  once  distinguishes  it  as  an  intruder,  and  shows  its^ 
humble  origin  and  design.  But  as  justices  of  the  peace, 
except  in  cities,  rarely  know  anything  of  the  technical  learn- 
in«-  of  the  common  or  even  of  the  statute  law,  to  insist  iTpon 
their  keeping  their  records  with  that  accuracy  and  formal- 
ity required  in  courts  of  record,  would  end  in  the  complete 
overthrow  of  most  of  their  proceedings.  Besides,  as  jus- 
tices of  the  peace  have  no  clerks  assigned  them  by  law, 
there  is  little  ground  for  the  presumption  that  even  loose 
and  disjointed  memoranda,  found  upon  their  minutes  or 

lilartin  u.  Baruharclt,  39  III.  9.  ]      'Hiuson  v.  Wall,  20  Ala.  298. 

40 


Chap.    II.]  TAILURE  TO  ENTER  JUDGMENT.  §^o3-53a 

dockets,  were  designed  as  rough  outlines  for  another  hand 
to  round  into  more  perfect  form. 

§  53a.  Failure  of  Justice  to  enter  Judgment. — In  New 
York,  justices  of  the  peace  are  required  to  enter  their  jud"-- 
ments  in  their  dockets  within  four  days  after  the  rendition 
thereof.  Eufc,  under  the  general  rule  that  the  entry  of  a 
judgment  is  a  ministerial  act,  the  failure  of  a  justice  to 
comply  with  this  part  of  the  law  within  the  time  required, 
has,  by  repeated  decisions,  been  held  to  leaye  the  judgment 
in  full  force.'  The  judge  who  delivered  the  opinion  of  the 
court  of  appeals  in  a  recent  case,  said  the  failure  of  the 
justice  to  obey  the  law,  is  deserving  of  censure,  but  added: 
'*  I  am  unable  to  find  any  principle  of  law  requirino-  us  to 
hold  that  the  omission  to  docket  must  inflict  a  penalty  upon 
the  plaintiff,  more  justly  due  to  the  magistrate. "2  In  Maine, 
a  justice  of  the  peace,  after  being  out  of  office  for  three  or 
four  years,  completed  the  record  of  a  case  tried  during  his 
official  term,  by  writing  up  a  judgment  in  his  judgment 
book.  Of  this  transaction,  Mellen,  C.  J.,  said  :  "A  maois- 
trate  does  not  act  judicially  in  making  up  and  completing 
his  record.  In  doing  th'"s,  he  performs  himself  what  this 
court  does  through  the  agency  of  its  clerk.  It  is  a  mere 
ministerial  act.  The  judgment  is  regular. "^  In  a  case  be- 
fore a  justice  of  the  peace  in  California,  the  jury  rendered  a 
verdict  in  favor  of  the  plaintiff  "  for  one  hundred  and 
seventy-five  dollars  in  gold  coin."  This  verdict  was  entered 
in  the  justice's  docket,  but  no  judgment  was,  in  fact,  entered 
in  pursuance  thereof.  Subsequently,  on  application  of  the 
plaintiff,  the  justice  issued  an  execution,  reciting  that  a 
judgment  had  been  rendered  by  him  for  that  much  money, 
and  for  costs  of  suit.  Under  this  execution,  a  sale  was 
made  by  the  Sheriff,  at  which  the  plaintiff"  became  the  pur- 
chaser. Ptelying  upon  title  derived  from  this  sale,  the 
plaintiff  brought  an  action  of  ejectment  to  recover  the  realty 
purchased  by  him  ;  but  the  defendant  insisted  that  the 
sale  was  void,  on  account  of  the  failure  to  enter  judgment 


1  Hall  V.  Tuttle,  6  Hill,  38.    Wal- 
rod  V.  i-lmler,  2  N.  Y.  131. 

3  Fish  V.  Emerson,  41  N.  Y.  377. 


3  Matthews  u.  Houghton,  11  Me.? 
377. 

47 


?^looa-54:  LAW   OF  JUDGMENTS.  [Cliap.    II. 

upon  the  verdict.     In  considering  this  portion  of  tlie  de- 
fense, the  Court  said  :    "The  justice,  iipon  receiving  the 
verdict,  was  required  by  statute  to  '  immediately  render 
judgment  accordingly.'     The  formal  entry  of  the  judgment 
was,  therefore,  a  mere  clerical  duty  imposed  upon  him  by 
the  statute,  and  the  performance  of  which  he  had  no  dis- 
cretion  to  decline.      He  might   have   been   compelled  to 
make  the  proper  entry  in  his  docket  by  judicial  proceed- 
ings instituted  against  him  for  that  purpose  by  the  plaintiff; 
and  it  may  be  conceded  that  to  issue  an  execution  before 
judgment  entered  in   form    upon   the  verdict  would  be  a 
bad   practice,    and  that  a  timely  motion   by  the   defend- 
ant to  set  it  aside  for  that  reason   should  be   sui^ported. 
That   would   be    so,    however,   not  because  such  an   exe- 
cution would  be  void,   but  because  it  would  be  irregular 
merely.      And  a  failure  to  make  the  objection   would,  of 
course,    amount  to   a  waiver  of  the  irregularity.     As  was 
said  by  the  Supreme  Court  of  New  York  :^    'We  are  to 
overlook  matters  of  form,  and  to  regard  proceedings  before 
justices  of  the  peace    according   to    the  merits.     Accord- 
inglv,  in  that  case,  a  plea  of  former  judgment  in  favor  of 
the  defendant  was  held  to  be  supported  by  proof  of  a  ver- 
dict   in  his  favor,  upon   which  the    justice  of    the   peace 
ought  to  have  rendered  judgment,  but  had  omitted  to  do 
so.'  "  '' 

§  54.  Reference  to  Another  Case. — The  entry  of  a  judg- 
ment, even  in  a  justice's  court,  must  either  be  perfect  in 
itself,  or  be  capable  of  being  made  perfect  by  reference  to 
other  parts  of  the  docket,  or  to  the  papers  on  file  in  the 
action.  An  entry  in  which  the  identity  of  the  parties  can 
not  be  ascertained  without  referring  to  the  entry  of  some 
other  case,  is  fatally  uncertain.  The  rule  of  construction 
permitting  all  the  records  and  papers  in  a  case  to  throw 
light  upon  an  obscure  entry,  is  sufSciently  liberal,  and 
ought  not  to  be  extended  so  as  to  include  the  records  or 
pleadings  in  another  suit.^ 


1  Felton  V.  Miillincr,  2  Johus,  181. 

2  Lynch  v.  Kelly,  41  Cal.  232;  see 
to  same  effect,  James  v.  Belts,  2 
Douglas,  Mich.  98;  Hess  v.  Beekman, 

43 


11    Johns.  457;    Overall  v.   Pero,   7 
Mich.  17. 

3 McClelland  v.    Cornwall,  2  Cold. 
298. 


Cliap.    II.]  ON  AN  AWARD.  g55 

g  55.  On  an  A"ward. — An  action  being  tried  by  referees, 
they  reported  "that  the  defendant  is  indebted  to  the 
phiintiff  on  the  above  complaint  in  the  sum  of  fonr  doHars, 
and  nine  dollars  and  six  cents  costs  of  suit."  The  justice 
of  the  peace  thereupon  wrote :  * '  Judgment  rendered  Decem- 
ber 26,  1840.  M.  Tindal."  A  marginal  note  stated  the 
amount  of  judgment  and  costs  to  be  the  same  as  named  in 
the  report.  This  was  held  to  constitute  a  sufficient  entry, 
because  the  inference  Avas  unavoidable  that  the  judgment 
was  intended  to  be  in  conformity  with  the  award,  this  in- 
ference being  strengthened  by  the  marginal  note,  to  which 
resort  could  be  properly  had  to  explain  and  uphold  the 
judgment." 

sElliott  V.  Morgan,  3  Harr,  316. 

Note. — The  following  entries  of  justice's  judgments  have  been  considered 

sufficient  in  the  higher  courts :     "  Peacham, 16th,  1828.    Judgment 

rendered  by  the  court  for  iilaintiff,  at  $5.25.  K.  Blauchard,  Justice  of  the 
Peace,"  accompanied  by  marginal  entry  of  "Costs  allowed,  $5.25."  See 
Story  V.  Kimball,  6  Verm.  541.  "  H.  C.  Anderson  v.  M.  L.  Elcan.  Judg- 
ment granted  V.  defendant  M.  L.  Elcan,  for  $433.90.  May  17,  1857..  C.J. 
Spencer,  J.  P."  Anderson  r".  Kimbrough,  5  Cold.  2G0.  In  Baratt  v.  Gar- 
ragan,  16  Iowa,  44,  the  transcript  showed  the  proceedings  up  to  and  including 
trial,  after  which  was  written:  "  Judgment  for  plaintiff  against  the  defend- 
ant for ,  October  24,  1856: 

"  Damages $84  00 

"  Justice's  fee $0  SO 

"Const 25 

"  Two  Witnesses 25  130 

$85  30." 
This  was  pronounced  a  perfect  jiidgment.     It  exhibited  the  time,  the  par- 
ties, and  the   result   so  clearly  as  to  be   immistakable.     In  New  York,  the 
words  "  Fish  v.  Emerson.    Testimony  submitted  June  30,  1863. 

"  Judgment  for  plaintifif;  damages $124  80 

3  92 


128  72." 
were  heid  to  be  sufficient  as  the  entry  of  a  judgment.    (44  N.  Y.  p.  376.) 

On  the  other  hand  a  judgment  in  this  form:  "The  xDlaintiff  tiled  his  de- 
mand for  thirty  dollars;  the  defendant  not  appearing,  the  plaintiff  proves 
his  demand,  and  I  gave  judgment  for  the  same,"  was  reversed  for  not  being 
such  a  judgment  as  the  law  requires.  {Polhemui  v.  PerJdns,  3  Green,  N.  J. 
435.)  "  Be  it  remembered  that  at  Barnard,  April  23d,  1836,  Asaph  Wilder, 
of  "Woodstock,  was  attached  to  answer  James  "Wright,  of  Barnard,  on  former 
judgment  of  Lj-mau  Stewart,  Esq.,  in  a  case  James  WrigJtt  v.  Loren  Gay. 
Now  the  plaintiff  says  that  tlie  judgment  of  Lymau  Stewart  was  collected  by 

(4)  49 


g55  LAW  OP  JUDGMENTS.  [Cliap.    11. 

E.  Parker,  deputy  sheriff,  aud  converted  same  to  his  o-wu  use,  and  uever 
accounted  for  same,  nor  any  part  thereof.  The  said  Wright  recovered  judg- 
ment by  default,  for  the  sum  of  $15.15  damages,  and  $51.99  costs  of  suit. 
Winslow  W.  Ralph,  justice  of  the  peace."  Upon  a  plea  of  nul  tlel  record  was 
considered  as  containing  no  legal  evidence  of  a  judgment,  on  the  ground  that 
it  showed  no  court  holden,  no  appearance  by  either  party,  no  adjudication 
by  the  justice,  no  allusion  to  any  writ  or  process  or  declaration,  and  no 
award  of  execution.  (WYight  v.  Fldcher,  12  Verm.  431.)  A  jury  returned  a 
verdict:  "  We,  the  jury,  fiud  in  favor  of  the  plaintiff,  and  assess  his  damages 
at  in  the  sum  of  $4,493;"  and  the  record  showed  the  entry  "whereupon  the 
court  enters  judgment  on  the  verdict."  It  was  held  that  this  entry  had  no 
element  of  a  judgment  other  than  the  mere  recognition  of  the  verdict.  "  The 
ideo  consideraium  est  is  wanting."  {Faulk  y.  Eelhims,  54111.  1S9.)  "Gave 
judgment  in  favor  of  plaintiff  for  $171  and  costs,"  is  a  sufficient  entry  of  a 
justice's  judgment.     {Hutchinson  v.  Fidrjhum,  4  Heisk.  550.) 

60 


Chap.  III.]  JUDGMENTS  NOT  RENDERED.  g56 


CHAPTEE  ni. 

OP  THE  ENTRY  OF  JUDGMENTS  AND  DECREES,  NUNC  PRO  TUNC. 

PART  I.— WHERE  NO  JUDGMENT  WAS  RENDERED. 

g  56.  Policy  and  Antiquity  of  the  Practice. 

§  57.  Cases  where  delay  is  occasioned  by  non-action  of  the  Court. 

§  58.  'Where  party  is  tied  up  by  some  motion. 

§  59.  Entry  to  be  made  only  wheu  case  was  ready  for  final  judgment. 

§  60.  Not  to  be  made,  where  the  delay  is  not  by  the  Court. 

PART  II.— JUDGMENTS  RENDERED,  BUT  NOT  ENTEREU 

§  61.  Cases  where  judgment  was  rendered,  but  not  entered. 

§  62.  Whether  parol  evidence  is  admissible. 

§  63.  Cases  showing  that  it  is. 

§  64.  When  application  may  be  ex  parte. 

%  65.  Withdrawal  of  jurisdiction. 

§  66.  Saving  of  rights  of  third  persons. 

§  67.  Gives  judgment  same  effect  as  if  entered,  when  rendered. 

§  68.  Must  be  confined  to  clerical  omissions. 

PART  I.— JUDGMENTS  NOT  RENDERED. 

§  56.  The  policy  of  entering  judgments  and  decrees, 
nunc  pro  tunc,  is  agreeable  to  the  maxim  ''Actus  curie  nemi- 
nem  gravahif — "An  act  of  the  court  shall  prejudice  no  one." 
This  maxim,  says  Mr.  Broom,  "is  founded  in  justice  and 
good  sense  ;  and  affords  a  safe  and  certain  guide  to  the  ad- 
ministration of  the  law."^  As  an  expression  of  the  princi- 
ple upon  which  judgments  are  given  effect,  as  of  some  time 
prior  to  their  actual  entry,  the  maxim,  in  the  interests  of 
accuracy,  requires  to  be  changed  to  "  a  delay  of  the  court 
shall  prejudice  no  one,"  and  to  be  limited  in  its  application 
so  as  to  affect  none  but  the  parties  litigant.  The  powder  of 
making  an  entry,  nunc  pro  tunc,  seems  to  have  been  pos- 
sessed and  exercised  by  courts  of  law  and  of  equity  from 
the  earliest  times. ^  The  period  in  w^hich  this  power  could 
be  successfully  invoked  was  never  limited;  a  decree  in  one 


'Broom's  Legal  Maxims,  p.  115. 

'^Mayor  of  Norwick  v.  Berry,  4 
Burr.  2277;  Hodges  v.  Templer,  G 
Mod.  191;  Evans  u.  Rees,  12  Ad.  & 


E.  1G7;  Mays  v.  Hassell,  4  Stew.  & 
Port.  222;  Shepherd  v.  Brenton,  20 
Iowa,  41. 

51 


-57  LAW   OF   JUDGMENTS.  [Cliap,  III. 

instance  being  entered  after  the  lapse  of  twenty-tiiree  years.' 
The  practice  was  confined  to  those  cases  in  which  some 
hardship  wonkl  be  visited  npoil  one  of  the  parties  without 
any  fault  of  his,  unless  he  was  relieved  from  it  by  allowing 
his  judgment  to  bo  entered  at  some  period  when  he  was 
legally  entitled  thereto,  and  of  such  a  date  as  was  neces- 
sary to  avoid  the  embarrassment  in  which  he  would  other- 
wise be  involved. 

§  57.  Delay  of  the  Court. — The  cases  naturally  resolved 
^themselves  into  two  classes.  The  first  comprised  a  large 
number  of  actions,  in  which  no  judgments  had  ever  been 
rendered;  but  which  were,  so  far  as  the  suitors  could  make 
them,  in  condition  for  the  rendition  of  final  judgments. 
The  second  was  composed  of  cases  comparatively  few  in 
number,  in  which  judgments,  though  formally  pronounced, 
had,  from  accident  or  from  negligence  of  the  clerks,  never 
been  put  upon  the  records.  The  first  class  contained  not 
only  the  greater  number  of  cases,  but  each  of  the  cases 
within  it  was,  in  all  probability,  jnore  deserving  of  relief 
than  any  of  the  cases  of  the  second  class.  No  case  could 
be  ranked  among  the  first  class,  in  which  the  delay  to  ren- 
der or  enter  judgment  was  imputable  to  any  negligence  or 
even  misapprehension  of  the  parties.  The  rule  that  no 
judgment  would  be  ordered  entered  nunc  pro  tunc,  except 
for  delay  of  the  court,  admitted  of  no  exceptions  in  theory; 
and  was  so  constantly  observed  in  practice,  that  one  of  the 
judges  remarked  that  he  had  never  known  of  its  violation 
during  his  experience,  extending,  at  bar  and  bench,  over  a 
period  of  forty  years.-  The  necessity  for  entering  judg- 
ments as  of  some  day  prior  to  their  rendition,  arose  chiefly, 
if  not  exclusively,  in  those  cases  where,  after  the  trial  and 
submission  of  a  cause,  one  of  the  parties  died,  as  no  judg- 
ment could  properly  bo  entered  bearing  date  subsequent  to 
his  death.  As  the  suitor  who  brought  his  action  on  to  trial, 
and  caused   it  to  be  tried  and  submitted,  had  manifestly 

IDan'l  Gh.  Pr.  1219;  Lawrence  ti.    Freeman  v.   Trannah,    12   C.  B.  406; 


Kiclimond,   J.  &   W.  241;    see   also 

Downe  V.  Lewis,  11  Ves.  GOl;  Drum- 

mond  V.  Anderson,  3  Grant's  Ch.  152. 

sHeathcote  V.  Wing,  11  Exc.  355; 

52 


Fishmongers  Co.  v.  Robertson,  3  C. 
B.  970;  Lawrence  v.  Hodgson,  1  Y.  & 
J.  3G8. 


Cliap.  III.]        DELAY   OCCASIONED   13Y.  MOTIONS.-  §§57-59 

been  guilty  of  no  ladies,  the  court  protected  him  from  any 
prejudice  he  might  suffer  by  the  death  of  his  adversary 
after  such  submission;  and  .instead  of  permitting  the  action 
to  abate,  directed  the  judgment  to  be  given  effect,  if  neces- 
sary, as  far  back  as  the  day  of  the  submission.  Thus  the 
time  taken  by  the  court  for  deliberation  was,  as  far  as  pos- 
sible, prevented  from  working  injustice  to  the  party  who 
should,  in  the  end,  prevail  in  his  suit.  ^ 

§  58.  Delay  Occasioned  by  Motions. — Besides  the  delay 
occasioned  by  the  deliberations  of  the  judges  after  the  ar- 
gument  of  a  cause,  the  prevailing  party  was  likely  to  be  tied  " 
up  by  various  motions  whose  x^endency  deprived  him,  foT  a 
time,  of  the  fruits  of  his  litigation.  The  consideration  of 
these  subjected  him  to  the  same  peril,  and  entitled  him  to 
the  same  relief,  as  though  he  were  endangered  by  being 
compelled  to  await  the  decision  of  the  judges  after  the  argu- 
ment on  the  trial.  Hence,  if  during  the  pendency  of  a 
motion  in  arrest  of  judgment,^  or  for  a  new  trial,  "whether 
after  verdict  or  nonsuit — on  demurrer  or  writ  of  error;  ^  or 
to  reduce  the  amount  of  an  award  i-^  or  if  pending  the  de- 
cisions of  questions  of  law  which  could  not  be  heard  on 
account  of  press  of  business  in  court,  ^  one  of  the  parties 
die,  the  other  may  have  judgment  entered  as  of  some  term 
during  the  lifetime  of  his  opponent. 

§  69.  Made  only  when  Cause  was  ready  for  Final 
Judgment. — But  in  every  case  to  entitle  the  applicant  to 
have  his  judgment  entered  nunc  i^ro  tunc,  on  account  of  the 
death  of  one  of  the  parties,  the  action  must,  at  the  time  of 


iJennings  v.  Ashley,  5  Pike, '  128; 
Pool  V.  Loomis,  5  Pike,  110;  Joues  v. 
Le  Da^-ids,  2  Fowler's  Ex.  Pr.  169; 
Campbell  v.  Mesier,  4  Johu.  Ch.  34i; 
Davies  v.  Davies,  9  Ves.  Jr.  461;  Wood 
V.  Keyes,  6  Pai.  478;  Hess  v.  Cole,  3 
Zabr.  116;  Griswold  r.  Hill,  1  Paine 
C.  C.  483;  Perry  v.  Wilson,  7  Mass. 
393;  Springfield  v.  Worcester,  2  Cusli. 
52;  Astley  v.  Kej-nolds,  2  Strange, 
917;  Neil  v.  McMillan,  27  Upper  Can- 
ada, Q.  B.  258;  Day  v.  Cameron,  15 
Upper  Canada,  Q.  B.  175;  Abington 


V.  Lipscomb,  11  L.  J.  Rep.  (N.  S.) 
Q.  B.  15;  Miles  v.  Williams,  16  Id. 
47;  Miles  v.  Bough,  15  Id.  30. 

sTidd's  Pr.  8th  £d.  p.  966;  Griffith 
V.  Ogle,  1  Binney,  172;  Brown  v. 
Wheeler,  18  Conn.  199. 

3  Spalding  V.  Cougdon,  IS  Wend. 
543;  Fcyghtmire  v.  Durham,  12  Wend. 
245;  Currier  u.  Lowell,  16  Pick.  170; 
Tooker  v.  Duke  of  Beaufort,  1  Burr. 
147. 

4  Bridges  v.  Smyth,  8  Bing.  29. 
5 Miles  u.  Williams,  9  Q.  B.  47. 

53 


g§59-60  LAW  OF  JUDGMENTS.  [Chap.   III. 

such  death,  have  been  ready  for  the  rendition  of  the  final 
judgment.  It  is  not  sufficient  that  an  interlocutory  judg- 
ment had  been  pronounced,  and  proceedings  -were  pending 
in  pursuance  of  a  writ  of  inquiry;'  nor  that  judgment  had 
been  given  against  the  defendant  on  demurrer,  with  leave 
to  amend.  In  each  of  these  cases  no  judgment  could  prop- 
erly have  been  entered  Avhen  the  death  occurred,  and  that 
event  ought  not  to  give  the  survivor  any  greater  advantage 
than  he  previously  possessed.  "It"  (entering  judgments 
nunc  pro  tunc)  "should  be  confined  to  cases  where  the 
judgment  is  final,  as  where  a  verdict  has  been  rendered 
or  a  nonsuit  ordered,  which  is  confirmed  by  the  court  on 
motion  for  a  new  trial;  or  where  a  judgment  is  rendered  on 
a  special  verdict,  demurrer  to  evidence,  or  a  writ  of  error. 
But  according  to  the  present  practice,  judgment  on  demur- 
rer is  seldom  final."- 

§  60.     Delay,  Not  of  Court. — If,  however,  the  delay  is  in 
no  wise  attributable  to  the  court,  nor  to  the  tying  up  of  the 
case  during  the  time  required  to  dispose  of  such  motions  as 
w^e  have  mentioned,  no  doubts  nor  difficulties,  nor  mistakes 
of  law,  in  which  one  of  the  parties  has  been  involved,  will 
entitle  him  to  this  relief.     If,  for  instance,  the  counsel  in  a 
case  are  unable  to  decide,  at  once,  what  form  of  judgment 
or  decree  is  best,  and  while  discussing  this  matter  among 
themselves,  the  plaintii't"  or  defendant  dies;^  or  if  a  party, 
upon  applying  to  have  judgment  signed,  does  not  press  the 
matter,  because  one  of  the  officers  suggests  a  doubt  as  to 
whether  it  is  not  a  legal  holiday,  and  the  defendant  dies  the 
same  day,  *  neither  of  these  cases  warrants  the  interposition 
of  the  court.      The  court  is  in  no  way  blamable  for  the 
doubts  or  misapprehensions  of  the  parties  nor  of  their  ad- 
visers, and  it  Avill  not  change  its  course  of  proceeding  to 
relieve  them  from  the  consequence  of  any  mistake  of  law  or 
of  fact.     That  there  is  a  surviving  defendant,  is  not  a  suffi- 
cient objection  to  the  entry  of  judgment  nunc  pro  tunc,  if 


1  Jennings  v.  Ashley,  5  Pike,  128. 

2 North   V.  Tepper,  20  Wend.  G77; 

Kissam  v.  Hamilton,  20  How.  P.  375. 

•^Fishmongers  Co.  v.  Hobertson,  3 

54 


C.  B.  970;  S.  C.  IG  L.  J.  Eep.  (N.  S.) 
C.  P.  118;  4Dowl.  056. 

4  Wilkes  V.  Perkes,  5  Man.   &   Gr. 
37G. 


Chap.  III.]    RENDERED  BUT  NOT  ENTERED.        g§G0-61 

the  other  facts  authorize  it.  ^  The  rule  that  judgment  will 
not  be  entered  nunc  pro  tunc,  will  be  enforced  even  where 
the  delay  is  occasioned  by  the  party  against  whom  the  entry 
is  sought  to  be  made.  Thus,  where  judgment  would  have 
been  entered  within  two  terms  after  the  entry  of  the  ver- 
dict, but  for  the  fact  that  the  plaintiffs  executor  was  de- 
layed in  proving  a  will  on  account  of  a  caveat  entered  by 
the  defendant  against  the  probate  being  granted,  the  court, 
though  conceding  the  case  to  be  one  of  extreme  hardship, 
denied  the  application  to  enter  judgment  nunc  pro  tunc,  one 
of  the  judges  saying:  "  I  think  we  ought  not  to  be  induced, 
by  our  desire  to  do  substantial  justice  in  the  individual 
case,  to  depart  from  those  general  principles  which  are 
the  only  safe  guides  for  the  administration  of  the  law."*^ 


P.\JIT  II.— CASES  OF  JUDGMENTS  EENDERED  BUT  NOT  ENTEEED. 

§  61.  In  Relation  to  the  Second  Class  of  Cases,  some 
degree  of  negligence  is  always  chargeable  against  the  par- 
ties, for  .  not  attending  to  having  the  proper  entries  made. 
Frequently,  however,  both  parties  suppose  the  judgment  to 
be  entered  as  well  as  rendered.  Upon  that  supposition, 
process  is  issued  and  enforced,  or  other  proceedings  taken 
to  carry  out  the  judgment ;  and  new  rights  and  interests  are 
based  upon  it.  To  protect  these,  it  is  occasionally  neces- 
sary to  have  the  judgment  entered  as  of  some  time  prior  to 
their  inception.  The  entry  of  judgment  nunc  pro  tunc  is 
always  proper  when  a  judgment  has  been  ordered  by  the 
court;  but  the  clerk  has  failed  or  neglected  to  copy  it  into 
the  record.  ^  The  chief  questions  of  importance  in  this  class 
of  cases  are,  how  shall  it  be  shown:  1st,  that  a  judgment  was 
rendered,  as  alleged  ;  and  2d,  if  so  rendered,  what  were  the 
nature  and  extent  of  the  relief  given  by  it.  During  the 
term  the  proceedings  are  under  control  of  .the  court,  and 
no  embarrassing  questions  can  arise  in  relation  to  the  exer- 
cise of  the  correctory  powers  of  the  court.  But  after  the 
term,  upon  what  evidence  can  a  motion  for  the  entry  of 


^Harrison   v.  Ileathoru,    G   Scott's 
N.  E.  797;  1  DonyI.  &  L.  529. 


2Freemanu.  Trannah,  12  C.  B,406; 
21  L.  J,  Rep.  (N.  S.)  C.  P.  2U. 
3  Hagler  v.  Mercer,  6  Florida,  721. 

65 


§§G1-G2  LAW  or  JUDGMENTS.  [Chap.   III. 

judgment,  as  of  same  prior  term,  be  based  ?  Upon  this  sub- 
ject the  decisions  are  not  numerous.  In  most  cases  where 
the  propriety  of  the  entries  came  in  question,  the  facts 
are  stated  in  the  reports,  without  any  intimation  as  to  how 
those  facts  were  made  apparent  to  the  court.  Probably  the 
weight  of  authority  sustains  the  rule,  that  only  by  some 
entry  or  memorandum  on  or  among  the  records  of  the 
court,  can  the  rendition  of  a  jvidgment  be  proved.^  An 
entry  must  somewhere  be  found  and  produced  in  court, 
apparently  made  by  the  authority  of  the  court.  It  must  be 
in  some  book  or  record  required  to  be  kept  by  law  in  that 
court.  Under  this  rule,  a  decree  filed  among  the  papers  in 
a  cause,  signed  by  the  judge,  when  the  law  did  not  require 
decrees  to  be  reduced  to  writing  and  filed,  and  when  no 
part  of  the  records  showed  the  rendition  of  any  decree,  was 
considered  insufficient  to  warrant  its  entry  nunc  pro  tunc, 
as  the  former  decree  of  the  court.-  The  motion  docket 
being  a  book  required  by  law  to  be  kept,  the  memoranda 
there  made  are  competent  evidence  to  show  the  rendition 
of  a  judgment.^  So  is  the  opinion  of  a  judge  in  writing, 
filed  among  the  records  in  a  case,  if  the  law  required  it  to 
be  written  and  filed.* 

§  62.  Evidence  to  base  Entry  on. — But  assuming  the 
evidence  to  be  competent  for  the  purpose  for  which  it  is 
offered,  and  to  show  the  rendition  of  some  judgment,  the 
question  then  to  be  determined  is,  does  it  show  with  suffi- 
cient clearness  what  that  judgment  was  ;  and,  if  not,  may 
its  obscurity  be  removed  by  the  use  of  other  means  of 
proof.  The  entry  by  a  judge  in  his  docket,,  "Jury  and 
verdict  for  plaintiff',  and  fifteen  per  cent,  damages,"  taken 
in  connection  with  the  papers  on  file,  was  adjudged  to  afford 
no  sufficient  data  for  ]x\i\.ipvi.Q\ii  nunc  pro  tunc,  because  the 
verdict  may  have  been  for  less  than  the  amount  claimed  by 
the  plaintiff. '  •  The  memoranda  on  the  trial  docket  of  the 
Orphan's  Court,  as  follows:   "Joshua  Metcalf,  heir  of  A. 


1  Metcalf  V.  Metcalf,  19  Ala.  319  ; 
Hegeler  v.  Henekcll,  27  Cal.  491  ; 
Swain  v.  Naglee,  19  Cal.  127  ;  Hyde 
V.  Curling,  10  Mo.  359. 

2  Hudson  V.  Hudson,  20  Ala.  SGI. 

56 


3  Yonge  V.  Broxsam,  23  Ala.  G84. 

4  State  u.  Mayor  of  Mobile,  24  Ala. 
701. 

^Dickens  v.  Bush,  23  Ala.  849. 


Chap.    III.]         EVIDENCE   TO   BASE  ENTRY  ON.  ^62 

Mctcalf ,  use  of  J.  W.  Williamson  v.  Adams.     Judgment  on 
demurrer.     Leave  to  amend  granted  on  payment  of  costs  of 
term.     Costs  paid  by  S.  T.  Ptoacli,  attorney.     Ordered  to 
appoint  auditors  Benj.   Walding,   Matthew  Johnson,   and 
Daniel  Johnson.     Ordered  that  they  report  iustante\\     Au- 
ditors report  in  the  hands  of  administrator,  $J-G9.82,"  were 
held  not  to  sustain  a  nunc  pro  tunc  decree  on  account  of 
their  not  showing  the   presentation  of  any  accounts,  the 
amounts  received  or  paid  out,  the  name  of  the  administra- 
tor, nor  whether  the  settlement  was  partial  or  final. ^     The 
words  on  motion  docket,  "Oct.  Term,  1841 — Nonsuit,"  with 
lines  drawn  across  the  names  of  the  plaintiff  and  defendant, 
according  to  the  custom  when  a  case  was  stricken  from  the 
docket,  all  done,  confessedly,  by  the  presiding  judge  at  the 
time,  authorize  the  entry  of  a  judgment  nunc  pro  tunc  J-     The 
courts  of  Alabama,  whose  reports  are  wonderfully  prolific 
in  cases  involving  the  power  to  enter  judgments  nunc  pro 
tunc,  have  viewed  such  entries  with  unfounded  alarm,  and 
have  seen  the  dangers  arising  from  their  encouragement, 
through  some  exaggerating  medium.     These  courts  are  se- 
vere in  their  condemnation  of  the  practice  of  assisting  the 
record  memoranda,  by  parol  evidence.      An  entry  on  the 
docket,    "Estate  of  Solomon  Perkins,  deceased,"   "Final 
Settlement,"  "  Settlement  made,"  accompanied  by  proof  of 
the  terms  of  the  decree  from  memoranda  made  by  the  attor- 
ney on  the  back  of  the  account,  and  by  the  testimony  of  the 
judge  that  he  pronounced  an  oral  decree  in  conformity  with 
the  meinoranda,  having  been  used  with  success  upon  the 
hearing  of  a  motion  to  have  a  decree  ordered  entered  in 
conformity  with  the  proof  of  its  rendition,  the  action  of  the 
court  was  reversed  upon  appeal,  the  appellate  court  saying : 
"If  we  can  hold  this  sufficient,  there  is  no  telling  where  we 
ought  to  stop.     If  a  judge  can  refresh  his  memory  by  writ- 
ings made  \>j  a  third  person,  and  prove  the  terms  of  his  de- 
cree in  that  way,  it  is  the  same  in  principle  as  allowing  the 
terms  of  any  judgment,  verdict  or  decree  to  be  established 
altogether  by  oral  testimony;  and  this  would  be  a  very  dan- 
gerous precedent,  and  going  much  farther  than  any  of  our 

^Metcalf  V.  Metcalf,  19  Ala.  319.       |      ^gj^oj-tv.  Kellogg,  10  Geo.  180. 

57 


gg62-63  LAW  OF  JUDGMENTS.  [Chax^.  III. 

decisions  warrant."'  The  extreme  position  hero  taken  is 
the  logical  result  of  the  general  rule  frequently  announced, 
and  more  frequently  violated,  that  a  record  can  only  be 
amended  by  some  matter  of  record.  Chief  Justice  Gibson, 
more  than  twenty  years  ago,  said:'  "The  old  notion  that  the 
record  remains  in  the  breast  of  the  court  only  till  the  end 
of  the  term,  has  yielded  to  necessity,  convenience  and  com- 
mon sense." ^ 

§  63.  Parol  Evidence,  as  basis  of. — Whether  the  "old 
notion "  has  yielded  so  far  as  to  authorize  the  entry  of  a 
judgment,  as  of  some  prior  date,  when  there  is  no  record 
evidence  of  its  rendition  at  such  date,  is  doubtful;  but  the 
fact  of  the  rendition  of  a  judgment  being  made  evident  by 
the  record,  a  decided  preponderance  of  authority  authorizes 
the  court  to  proceed  in  its  subsequent  investigations  with 
the  aid  of  oral,  as  well  as  of  written  evidence.  Were  the 
rule  otherAvise,  the  power  of  courts  to  furnish  relief,  made 
necessary  by  the  negligence  or  inadvertence  of  their  clerks, 
would  bo  so  restricted  in  its  operation  as  to  be  of  little  or 
no  utility.  The  instances  where,  in  the  absence  of  the  for- 
mal entry  of  judgment,  the  records  show  the  final  deter- 
mination with  accuracy  and  completeness,  are  few  in  number. 
Our  attention  should  not  be  so  riveted  upon  the  possible 
evil,  which  might  occasionally  arise  from  establishing  by 
parol,  the  terms  of  some  unrecorded  adjudication,  as  to 
make  us  oblivious  to  the  more  probable  evil  of  refusing  to 
protect  the  interests  groAvingup  under  actual  adjudications, 
which,  though  confessedly  existing,  have  not  been  reduced 
into  the  most  authentic  form.  'Courts  have  a  continuing 
power  over  their  records  not  affected  by  the  lapse  of  time. 
Should  the  record  in  any  case  be  lost  or  destroyed,  the 
court  whose  record  it  was,  possesses  the  undoubted  power, 
at  any  time  afterward,  to  make  a  new  record.  In  doing 
this,  it  must  seek  information  by  the  aid  of  such  evidence 
as  may  be  Avithin  its  reach,  tending  to  show  the  nature  and 
existence  of  that  which  it  is  asked  to  re-establish.  There 
is  no  reason  why  the  same  rule  should  not  apply,  Avhen,  in- 
stead of  being  lost,  the  record  Avas  never  made  up,  or  was 


1  Perkins  v.  Perkins,  27  Ala.  479. 
58 


sElioads     V.    Common-wealth,    15 
Penn.  S.  272. 


Chap.    III.]        PAROL   EVIDENCE,  AS  BASIS  OP.  §63 

SO  made  up  as  to  express  a  different  judgment  than  the  one 
pronounced  by  the  court.  Hence  the  general  rule  that  a 
record  may  be  amended,  not  only  by  the  judge's  notes,  but 
also  by  any  other  satisfactory  evidence  } 

"But  we  think  it  clear,  upon  the  authorities,  that  the 
court   may   make   such   amendments   upon  any  competent 
legal  evidence,  and  that  they  are  the  proper  judges  as  to 
the  amount  and  kind  of  evidence  requisite  in  each  case  to 
satisfy  them  what  was  the  real  order  of  the  court.""   "Each 
court  must  necessarily  be  the  jjroper  judge  of  what  it  has 
decided  and  adjudged,  and  when  it  orders  an  amendment 
of  the  record,  the  presumption  of  other  courts  must  neces- 
sarily be  that  it  does  not  undertake  to  order  its  clerk  to 
record  what  it  never  had  decided."^     "Whether  there  was 
a  mistake  in  the  record,  was  a  question  of  fact  to  be  estab- 
lished as  any  other  fact  in  a  court  of  justice  by  proper  evi- 
dence.    For  this  purpose  the  letter  of  the  Chief  Justice, 
the  entries  on  the  docket  books,  and  the  testimony  of  the  ivit- 
nesses  who  heard  the  decision  announced  in  open  court,  were 
all  admissible."*     Such  evidence  as  is  competent  to  amend 
a  record,  ought  to  be  competent  to  sup^Dly  one.  For  a  court, 
in  interfering  with  an  existing  record,  whose  inaccuracy  is 
not  evident  from  other  matters  of  record,  moves  upon  more 
doubtful  ground  than  in  conducting  investigations  when  no 
matter  of  record  needs  to  be  modified  or  overthrown.     In 
Massachusetts,    the   record  of  a  judgment  was  completed 
after  the  lapse  of  twenty  years,  and  the  proposition  affirmed, 
that  the  amount  of  evidence  for  that  purpose  is  within  the 
discretion  of  the  court. ^     The  evidence  in  this  case  was  oral. 
In  another  instance,  the  entry  seems  to  have  been  ordered, 
upon  motion,  supported  by  an  affidavit.  ^     In  several  other 
cases,  the  reception  of  parol  evidence  has  been  sanctioned, 
for  the  purpose   of  showing  the  nature   of  the  judgment 
alleged  to  have  been  rendered.'^ 

sEuggu.  Parker,  7  Gray,  172.  and 
9  Gray,  209. 

6Doe  V.  Litherbery,  4McL.  442. 

iBurnett  v.  State,  14  Tex.  455; 
State  V.  McAlpin,  4  Irecl.  140;  John- 
son V.  Wright,  27  Geo.  555;  Davis  v. 
Shaver,  1  Phill.  Law.  18. 


1  Mathesou's  Admr.  v.  Grant's 
Admr.,  2  How.  U.  S.  263;  Clark  v. 
Lamb,  8  Pick.  415. 

SFrink  v.  Frink,  43  N.  H.  508. 

3  Petition  of  Inhabitants  of  Lim- 
erick, 18  Maine,  183. 

4  Weed  V.  Weed,  25  Conn.  337;  Hol- 
lister  V.  The  Ji;dges,  8  Ohio  S.  201. 


59 


§§G4-65  LAW  OF  JUDGMENTS.  [Chap.   III. 

g  64.  Application  Ex  Parte. — In  Alabama,  the  applica- 
tion to  enter  judgment  judic  pro  tunc  may  be  made  without 
notice.^  This  rule  is  proper  enough  in  that  State,  and  in 
all  others  where  the  motion  must  be  determined  from  an 
inspection  of  the  records.  But  whenever  the  application 
calls  for  an  investigation  by  the  court,  outside  of  its  records, 
to  determine  either  the  existence  or  the  terms  of  the  alleged 
judgment,  notice  to  the  adverse  party  is  proper  and  neces- 
sary. 

§  05.      Termination  of  Jurisdiction. — In   Ohio  it    has 
been  decided  that  if,  after  the  rendition  of  a  judgment,  and 
before  the  entry  thereof,  the  jurisdiction  of  the  court  over 
that   class   of   cases   is   withdrawn,    the  court  as  to    them 
ceases  to  exist,  and  can  not  enter  its  judgment  nunc  'pro 
tunc."      The   correctness   of    this   decision   may   well    be 
doubted.     The  case  seems  to  us  to  be  one  where  the  cor- 
rectory  powers  of  the  court  could  have  been  employed  in 
the  furtherance  of  justice,  without  any  infringement  of  the 
law.     The  jurisdiction  of  the  court  over  the  case  had  been 
completed  by  hearing  and  determining  th^  issues  involved, 
and  by  granting  appropriate  relief.     "What  remained  to  be 
done  after  the  withdrawal  of  jurisdiction,  either  in  giving 
effect  to  the  judgment  or  in  correcting  or  completing  the 
records,  the  court  had  power  to  do  by  virtue  of  its  general 
jurisdiction,  and  its  continuing  power  over  its  records.     In 
considering  whether  there  was  an  omission  of  something 
from  its  records  which  ought  not  to  be  omitted,  the  court 
was  not  in  the  exercise  of  the  same  kind  of  jurisdiction 
exercised  by  it  in  trying  the  cause;  nor  was  the  jurisdiction 
over  the  records  necessarily  dependent  upon  the  coutinji- 
ance  of  jurisdiction  over  the  subject  matter  of  the  suit. 
Where  an  action  was  brought  under  a  statute,  and  judgment 
rendered,  which  was  delayed  by  the  pendency  of  a  motion 
for  a  new  trial,  during  which  the  statute  was  repealed,  judg- 
ment was  entered  as  of  a  time  when   the   statute  was  in 
force.' 

1  Fugua  17.  Carriel,  1  Minor,  170;  1  2Ludlow  ^^  Johnson,  3  Ilainm.  553. 
AUenv.  Bradford,  3  Ala.  281;  Glass  3  Springfield  i;.  Worcester,  2  Cusli. 
V.  Glass,  24  Ala.  4C8.  I  52. 

GO 


Chap.  III.]  EFFECT  OF.  g§6G-68 

§  GG.  Rights  of  Third  Persons.— The  entry  of  judg- 
ments or  decrees  imnc  pro  tunc,  is  intended  to  be  in  further- 
ance of  justice.  It  will  not  be  ordered,  so  as  to  affect  third 
persons,  who  have  acquired  rights,  without  notice  of  the 
rendition  of  any  judgment.  Generall}'  such  conditions  will 
be  imposed  as  may  seem  necessary  to  save  the  interests  of 
third  parties,  who  have  acted  honafide,  and  without  notice; 
but  if  such  conditions  are  not  expressed  in  the  order  of  the 
court,  they  are,  nevertheless,  to  be  considered  as  made  a 
part  of  it  by  force  of  the  law.  The  public  are  not  expected 
nor  required  to  search  in  unusual  places  for  evidences  of 
judgments.  They  are  bound  to  take  notice  of  the  regular 
records,  but  not  of  the  existence  and  signification  of  mem- 
oranda made  by  the  judge,  and  upon  which  the  record  may 
happen  to  be  afterwards  perfected.^ 

§  67.  Efffect  of. — With  the  exception  pointed  out  in 
the  above  section,  a  judgment  entered  nunc  2Jro  tunc  must 
be  everywhere  received  and  enforced,  in  the  same  manner 
and  to  the  same  extent  as  though  entered  at  the  proper 
time.  Though  an  execution  may  have  issued,  and  proceed- 
ings under  it  culminated  by  the  sale  of  j)roperty,  when 
there  was  nothing  on  the  record  to  support  it,  yet  the 
omission  was  one  of  evidence  and  not  of  fact,  and  the  evi- 
dence being  supplied  in  a  proper  manner,  full  force  and 
effect  will  be  given  to  the  fact  as  if  the  evidence  had  existed 
from  the  beginning.- 

§  68.  Blust  be  based  on  Previous  Act  of  the  Court. — 
It  must  be  observed  that  the  entire  purpose  of  entering 
judgments  and  decrees,  as  of  some  prior  date,  is  to  supply 
matters  of  evidence,  and  not  to  supply  or  modify  matters 
of  fact.  The  failure  of  a  court  to  act,  or  its  incorrect  action 
can  never  authorize  a  nunc  pro  tunc  entry.     If  no  judgment 

1  Hays  V.  Miller,   1  "Wash.   Terr.  1      2  Graham  v.  Lyon,  4  B.  Monr.  18  ; 


1G3  ;  Jordan  u.  Petty,  5  Florida,  326 
McCormack  v.  Wheeler,  36  111.  114 
Graham  v.  Ljnin,  4  B.  Mour.  18 
Ackler  v.  Ackler,  45  Ala.  609. 


Davis  V.  Shaver,  1  Phill.  N.  C.  18  ; 
Eugg  V.  Parker,  9  Gray,  209  ;  Bur- 
nett V.  State,  14  Tex.  455, 

61 


^68  LAW  OF  JUDGMENTS.  [Chap.  III. 

be  rendered,  or  if  an  imperfect  or  improper  one  bo  rendered, 
the  court  has  no  power  to  remedy  any  of  these  errors  or 
omissions  by  treating  them  as  clerical  misprisions.^ 


1  Gray  v.  Brignardello,  1  Wall.  027  ; 
Petition  of  Inliabitants  of  Limerick, 
18  Maine,   183  ;  Hj^do  v.  Curling,  10 

G2 


Mo.   359  >   Gibson  v.   Chouteau^  45 
Mo,  171. 


Chap.  IV.]  AMENDING  JUDGMENTS.  §^69-70 


CHAPTEE  IV. 

AMENDING  JUDGMENTS, 

§  G9.  During  Term. 

§  70.  Correcting  Judgment  after  Term. 

§  71.  Amending  Judgment  Entry. 

§  72.  Data  for,  in  the  United  States. 

§  73.  Tardy  Application. 

§  74.  Eights  of  Third  Persons. 

§  69.  During  Term. — "During  the  terme  wherein  any 
judiciall  act  is  done,  the  recor<l  remaineth  in  the  brest  of 
the  judges  of  the  court,  and  in  their  remembrance,  and 
therefore  the  roll  is  alterable  during  that  terme,  as  the 
judges  shall  direct;  but  when  the  terme  is  past,  then  the 
record  is  in  the  roll,  and  admitteth  no  alteration,  averment 
or  proof  to  the  contrarie."^  Of  the  law  thus  laid  down,  the 
only  part  remaining  unshaken  to  the  present  time  is,  that 
during  the  term,  the  proceedings  remain  in  the  breast  of 
the  judges.  Not  only  the  records  during  that  time  are  sub- 
ject to  the  revision  of  the  court,  but  the  judgment  itself 
may  be  altered,  revised  or  revoked,  as  well  as  amended  in 
respect  to  clerical  errors  and  matters  of  form.^ 

§  70.  Correcting  Judgments. — As  a  general  rule,  no  final 
judgment  can  be  amended  after  the  term  at  which  it  was 
rendered.  The  law  does  not  authorize  the  correction  of 
judicial  errors,  under  the  pretense  of  correcting  clerical 
errors.  To  entitle  a  party  to  an  order  amending  a  judgment 
or  decree,  he  must  establish,  that  the  entry  as  made,  does 
not  conform  to  what  the  court  intended  it  should  be  when 
it  was  ordered.  Thus,  if  a  solicitor  inadvertently  omit  from 
a  decree  some  clause  which  he  intended  to  insert,  and  pre- 


1  Co.  Litt.  260  a;  3  Bl.  Coram.  407. 

2Bui-cli  V.  Scott,  1  Bland.  Ch.  112; 
Dane's  Ab.  chap.  146,  Art.  5,  §  11; 
Stahlu.  Webster,  11111.511;  DeCastro 
V.  Eichardson,  25  Cal.  49;  Obenchain 


V.  Comegys,  15  Ind.  496;  Eobinson  v. 
The  Commissioners,  12  Md.  132;  Lane 
V.  Ellinger,  32  Tex.  369;  Palsgrave  v. 
Eoss,  2  Jut.  95  (Lower  Canada) . 

63 


Fo 


LAW  OF  JUDGMENTS. 


[Cliap.  IV. 


sent  tho  decree  to  the  Judge,  wlio  adopts  it  as  tlio  jiidgment 
of  the  court,  this  is  no  ground  for  an  amendment;  for  the 
facts  do  not  show  that  the  court  intended  to  pronounce  any 
different  decree  from  the  one  prepared  by  the  solicitor;  and 
tD  change  the  record  would  be  equivalent  to  exercising  a 
revisory  power  over  the  judgment  itself  by  the  same  author- 
ity that  pronounced  it.'  But  the  rule,  that  the  judgment 
as  rendered  cannot  be  amended  after  the  lapse  of  the  term, 
is  not  universally  respected  in  the  United  States.  On  the 
contrary,  some  exceptions  have  secured  a  permanent  foot- 
ing. In  some  of  tho  States,  the  courts  may,  at  any  time, 
add  to  their  judgments  such  clauses  as  may  be  necessary  to 
carry  them  into  effect,  when  there  is  anything  in  the  judg- 
ment by  which  to  amend."  In  New  York,  the  omission 
from  a  decree  of  any  matter  which,  if  applied  for  on  the 
hearing,  would  have  been  granted  as  a  matter  of  course, 
' '  as  necessary  or  proper  to  carry  into  effect  the  decision  of 
the  court,"  will  be  supplied  on  motion.^  In  such  case,  the 
omission  will  be  corrected  by  a  distinct  order,  without 
making  any  change  upon  the  decree."^  These  exceptions, 
tolerated  at  first,  on  the  ground  that  they  did  not  affect  the 
merits  of  the  case,  so  as  to  require  a  rehearing,  came  to  be 
regarded  as  authority  for  interference  in  a  matter  of  sub- 
stance and  importance.  An  action  was  instituted  on  tho 
joint  and  several  bond  of  two,  secured  by  a  mortgage  made 


1  Forquer  v.  Forquer,  19  HI.  G8  ; 
Bac.  Ab.  Title  "Amendments,"  etc., 
F.;  Scroggins' Admr.  r.  Scroggins,  1 
J.  J.  M.  3G2  ;  Powell's  Appellate  Pro- 
ceedings, Tp.  387  ;  Dorsey  v.  Dorsey, 
37  Md.  74 ;  Kemp  t-.  Cook,  18  Md. 
131  ;  Bertraud  v.  Gugy,  9  L.  C.  Ptep. 
260  ;  Huot  v.  Page,  9  lb.  226. 

2  Trammell  v.  Trammell,  25  Tex. 
Stipp.  2G1.  Thus,  where  it  appears 
from  the  record  that  a  name  ought  to 
have  been  inserted  in  the  judgment, 
the  record  was  amended  by  inserting 
such  name.  (Bank  v.  Seymour,  14 
Johns.  219.)  An  amendment  has  also 
been  authorized  after  the  lapse  of  the 
term  so  as  to  make  the  judgment  bear 
interest,  because,  by  the  rule  of  the 

64 


court,  interest  was  allowed  at  a  certain 
rate,  and  the  omission  to  include  it 
in  tho  judgment  must  be  deemed  a 
clerical  error.  (Banku.  Wistar,  3  Pet. 
431.)  In  England,  the  broad  rule  is 
laid  down,  that  "  it  is  always  open  to 
the  coiirt,  on  motion,  to  correct  its 
judgment  to  relieve  any  party  who 
may  be  unduly  prejudiced  by  any  act 
done  under  its  order,  and  to  prevent 
any  injurious  consequences  which 
may  flow  from  its  error."  Kelly  C. 
B .  in  Huffer  v.  Allen,  2  Law  K.  Exq. 
Cas.  15. 

3  Gardner  v.  Bering,  2  Edw.  Oh. 
131;  Eay  v.  Connor,  3  Edw.  Ch.  478; 
Eogers  v.  Rogers,  1  Pai,  Ch.  188. 

4 Clark  V.  Hall,  7  Pai.  Ch.  382. 


CLap.  IV.]  AMENDING  THE   ENTEY.  ?§70-71 

by  only  one.  A  decree  was  taken  for  the  sale  of  the  mort- 
gaged premises  and  against  the  mortgagor  for  tlie  deficiency 
which  should  exist  after  the  sale.  Upen  application,  with- 
out suggestion  of  any  misprision  of  the  clerk,  the  decree  was 
amended  so  as  to  be  against  both  defendants  for  the  defi- 
ciency. Upon  appeal,  the  chancellor  said  :  "  I  have  hesi- 
tated, therefore,  whether  it  could  be  proper,  without  a 
rehearing,  to  amend  the  decree  in  a  matter  of  substance  so 
material  to  the  rights  of  the  appellant ;  and,  upon  examina- 
tion of  the  cases,  I  am  satisfied  such  an  amendment  would 
not  have  been  permitted  in  the  Courts  of  Chancery  in  En- 
gland and  in  Ireland,  without  discharging  the  enrollment  and 
granting  a  formal  rehearing  of  the  cause."  He  considered, 
however,  that  a  different  rule  had  been  established  by  the 
cases  allowing  amendments,  by  inserting  what  would  have 
been  granted  as  a  "  matter  of  course  ;"  that  in  the  present 
case,  both  defendants  were  properly  parties  to  a  decree  for 
the  deficiency  ;  that  a  decree  so  drawn  would  have  been 
signed  as  "  a  matter  of  course"  in  the  first  instance  ;  and, 
therefore,  that  the  amendment,  as  a  matter  of  course,  had 
been  properly  made.^  Similar  in  effect  was  the  follow- 
ing, from  an  opinion  in  a  late  case  in  California  :  "The 
judgment  in  this  case,  as  first  entered,  was  defective,  in 
not  designating  the  defendants  wdio  w^ere  personally  liable 
for  the  debt  ;  but,  inasmuch  as  the  record  shows  who  they 
were,  the  court  had  power  to  amend  the  judgment  at  any 
time,  by  adding  a  clause  designating  the  defendants  who 
were  personally  liable.  ^  But  the  failure  of  the  court  to 
render  judgment  according  to  law,  must  not  be  treated  as 
a  clerical  misprision.  "Where  there  is  nothing  to  show  that 
the  judgment  entered  is  not  the  judgment  ordered  by  the 
court,  it  cannot  be  amended.  ^ 

§  71.  Amending  the  Entry. — ^The  rule  that  the  record 
admits  of  no  alteration  after  the  term  is  obsolete.  Even  in 
England  the  judgment  may  be  set  right  and  amended  by 
another  part  of  the  record,  so  as  to  correct  any  misprision 
or  neglect  of  the  clerk  in  entering  the  names  of  the  parties; 

1  Sprague  u.  Jones,  9  Pai.  Ch.  395.  I      3  Rogers  v.  Bradford,  8  Bush.  164. 
sLeviston  v.  Swan,  33  Cal.  480.      | 

(5)  65 


§§71-72 


LAW   OF  JUDGMENTS. 


[Chap.  IV 


or  in  the  form  of  the  jatlgmcnt.  In  all  cases  the  entry  of 
judgment  may  be  made  to  conform  to  the  record  and  the 
instructions  of  the  cle)-k.  *  A.1I  courts  have  inherent  power 
to  correct  clerical  errors  at  any  time ;  -  and  to  make  the 
judgment  entry  correspond  with  the  judgment  rendered.^ 
In  England  the  amendment  must  be  authorized  by  some 
matter  of  record.  Even  there  a  verdict  was  amended  by 
the  judge's  notes  and  the  affidavits  of  the  jurors  who  ren- 
dered it,'^  and  the  posted  after  a  lapse  of  two  years,  by  the 
judge's  notes.  ^ 

§  72.  Data  For. — In  the  United  States,  the  authorities 
showing  the  data  from  which  a  judgment  may  be  amended 
are  contradictory.  Some  of  the  States  have  adopted  the 
English  practice;  but  a  majority  have  adopted  one  more 
liberal.  In  Mississippi,  the  rule  of  the  English  cases  was 
understood  as  excluding  everything  not  a  part  of  the  record. 
On  that  ground  the  notes  of  the  judge  were  deemed  to  be 
as  incompetent  to  amend  the  record  by  as  any  other  parol 
evidence. s''  In  Indiana,  the  court  doubted  whether  any 
judge  could,  after  the  term,  amend  the  entry  of  the  judg- 
ment, on  the  ground  that  it  did  not  express  his  intention, 
when  there  was  nothing  in  the  record  to  amend  by.  °  The 
law  is  now  well  settled  in  Alabama, ''  Georgia, " '  Kentucky,  s 
Indiana, ^  Missouri, ^^ Mississippi,  ^  °  and  California,"  in  con- 


iBac.  Ab.  Title  Amendments,  F. 

sBurson  v.  Blair,  12  Ind.  371;  Bank 
of  U.  S.  V.  Moss,  G  How.  U.  S.  31; 
Finnell  v.  Jones,  7  Bnsli,  359;  Paddou 
V.  Bartlctt,  5  N.  &M.-  381;  Duvall  v. 
AVells,  4  H.  &  McH.  1G4;  Brush  v. 
Bobbins,  3  McL.  486;  O'Connor  v. 
Mullen,  11  111.  57. 

sScroggins'  Adm'r.  v.  Scroggius,  1 
J.  J.  M.  362;  Gibson  v.  Wilson.  18 
Ala.  63;  Chambers  t).  Hodges,  3  Tex. 
517;  Jenkins  v.  Eldridge,  1  W.  &  M. 
Gl;  Harris  r.  Billiugsley,  18  Ala.  438. 

4Coglan  c.  Eldcn,  1  Burr.  583. 

5 Doe  V.  Perkins,  3  Durf.  &  E.  719. 

5»Dickson  v.  Hoff,  3  How.  Miss. 
165;  Boonu.  Boon,  8  S.  &  M.  318; 
Rhodes  v.  Sherrod,  8  S.  &  M.  97; 
Burney  v.  Eoyett,   1  How.  Miss.  39. 

66 


GBoydi;.  Blaisdell,  15  Ind.  73. 
1  Summersetfc      v.       Summersett's 
Adm'r.,  40  Ala.  p.  59G. 

i^Pittman  v.  Lowe,  24  Geo.  429. 

8  Finnell  v.  Jones,  7  Bush.  359; 
Stephens  v.  Wilson,  14  B.  Monr.  88. 

9  Makepeace  v.  Lukens,  27  Ind.  435. 
o^Saxton  v.    Smith,   50    Mo.   490; 

State  V.  Clark,  18  Mo.  432. 

loMoody  V.  Grant,  41  Miss.  565; 
Russell  V.  McDougall,  3  S.  &  M.  234. 

1  iMorrison  v.  Dapman,  3  Cal.  255; 
Branger  v.  Chevalier,  9  Cal.  172; 
Swain  v.  Naglee,  19  Cal.  127;  Hegeler 
V.  Henekell,  27  Cal.  491;  DeCastro 
V.  Richardson,  25  Cal.  49. 


Chap.  IV.] 


DATA  FOR. 


572 


formity  to  tlio  rule  that  no  record  can  be  amended  but  bj* 
matter  of  record.  Undoubtedly,  as  in  cases  of  application 
to  enter  judgment  nunc  pro  tunc,  the  memoranda  of  the  pre- 
siding judge  upon  the  motion  docket,  and  his  written 
opinions,  when  required  to  be  filed  in  the  case,  would 
generally  be  regarded  as  parts  of  the  record.  In  Wiscon- 
sin, an  amendatory  order  based  upon  the  personal  recollec- 
tion of  the  judge,  and  conforming  the  judgment  to  that 
recollection,  was  sustained  upon  appeal.^  In  many  of 
the  States,  the  practice  has  grown  up  of  making  a  pro- 
posed amendment  the  subject  of  a  petition  and  motion. 
The  party  applying  is  required  to  set  forth  the  respect  in 
which  the  record  is  defective,  and  to  suggest  the  amend- 
ment with  which  he  proposes  to  cure  the  defect.  Notice  of 
the  motion  must  be  given  to  the  adverse  party,  and  an 
opportunity  allowed  him  to  appear  and  make  a  contest.^  At 
the  hearing,  such  evidence  is  received  as  would  be  compe- 
tent in  any  other  investigation.  This  practice  is  adopted 
either  by  express  decisions  or  by  tacit  acquiescence  in  Mas- 
sachusetts, ^  New  Hampshire,^  Maine, •'''  Connecticut,  '^  Ohio, '' 
Illinois,^  Arkansas,^  lowa^"  and  North  Carolina,"  and  is 
sanctioned  by  the  Supreme  Court  of  the  United  States.^" 
It  is  further  recommended  by  its  justness  and  its  liberality. 
"The  doctrine  in  this  country,  in  reference  to  amendments 
of  records,  may  be  said  to  have  crystallized  into  the  follow- 
ing legal  propositions,  namely :  That  any  error  ©r  defect  in 
a  record  which  occurs  through  the  act  or  omission  of  the 
clerk  of  the  court  in  entering,  or  failing  to  enter  of  record, 
its  judgments  or  proceedings,  and  is  not  an  error  in  the  ex- 
press judgment  pronounced  by  the  court  in  the  exercise  of 


» 


iWyman  v.  Buckstaff,  24  Wis.  477. 

sWeecl  V.  Weed,  25  Conn.  337  ; 
Means  v.  Aleans,  42  111.  50  ;  Alexan- 
der V.  Stewart,  23  Ark.  18  ;  Hill  t;. 
Hoover,  5  Wis.  386. 

3  Clark  V.  Lamb,  8  Pick.  415  ;  Eugg 
V.  Parker,  7  Gray,  172. 

4  Frink  v.  Frink,  43  N.  H.  18. 

5  Inhabitants  of  Limerick,  13  Maine, 
183. 

6  Weed  V.  Weed»  25  Conn.  337. 


1  Hollister  v.  Judges,  8  Ohio  S. 
201. 

8  Forquer  v.  Forquer,  19  111.  68. 

9  Arrington  v'.  Comey,  4  Barber, 
100  ;  Iving  v.  Stato  Bank,  4  Eng.  188. 

1"  Stockdalc  v.  Johnson,  14  Iowa, 
178. 

"  Galloway  v.  McKeithen,  5  Ired. 
12 ;  State  v-  King,  5  Id.  203. 

^-  Matheson's  Adm'r  v.  Grant's 
Adm'r,  2  How.  U.  S.  263. 

07 


§72  LAAV  OF  JUDGMENTS.  [Chap.    IV. 

its  judicial  discretion,  is  a  mere  clerical  error,  and  amend- 
able, no  matter  in  how  important  a  part  of  the  record  it- 
may  be;  and  when  the  error  or  defect  is  in  respect  to  the 
entry  of  some  judgment,  order,  decree  or  proceeding,  to 
which  one  of  the  parties  in  the  cause  was  of  right  entitled, 
and,  as  a  matter  of  course,  according  to  law  and  established 
practice  of  the  court,  it  will  sometimes  be  presumed  to  have 
occurred  through  the  misprision  of  the  clerk,  and  will  always 
be  amendable  if  from  other  parts  of  the  record,  or  from  other 
convincing  and  satisfactory  proofs,  it  can  be  clearly  ascer- 
tained what  judgment,  order  or  decree  the  party  was  en- 
titled to."^ 

The  law  in  relation  to  amendments,  as  stated  by  Lord  Coke, 
and  as  it  undoubtedly  existed  until  long  after  his  time,  was 
too  harsh  to  successfully  resist  the  march  of  legal  reform, 
even  in  conservative  England.  As  modified  in  that  country, 
it  is  still  too  inconsistent  with  a  liberal  administration  of 
the  law  to  escape  total  overthrow  in  this  country.     The 
proposition  that  "  the  power  to  amend  a  record"  is  confined 
to  cases  where  the  record  discloses  that  the  entry  ' '  does  not 
correctly  give  what  was  the  judgment  of  the  court,"  implies 
that  ministerial    authority  is  more   sacred    than  judicial 
authority.     This  proposition  is  sustained  by  the  averment 
that  a  record  is  of  "  uncontrollable  verity."     This  verity  is 
sufl&ciently  respected  when  it  is  allowed  to  protect  records 
from  collateral  assault ;  it  is  unduly  indulged  if  it  operate 
to  the  exclusion  of  truth,  in  every  form  and  on  every  occa- 
sion.    The  object  in  every  litigation  is  to  obtain  from  some 
court  a  final  determination  of  the  rights  of  the  parties.  That 
determination  is  invariably  what  the  judges  direct,  and  not 
invariably  what  the  clerks  record.     The  power  of  the  court 
to  make  the  record  express  the  judgment  of  the  court  with 
the  utmost  accuracy,  ought  not  to  be  restricted.    Upon  any 
suggestion  of  error,   the  court  ought  to  be  at  liberty  to 
ascertain   the   existence   or  non-existence   of    the  alleged 
error,  by  any  satisfactory  evidence.    The  record  is  made  up 
in  some  cases  after  the  term,  and  thus  the  opportunity  of 
asking  for  corrections  while  it  is  still  in  the  breast  of  the 
judge,  is  never  presented.     In  most  cases,  the  clerk  acts 

^  Doauo  V.  Glenn,  1  Colorado,  456. 

68 


Clrap.  IV.]  NOTICE  OF  ArPLiCATiON.  gg72-72a 

from  Ins  recollection  of  what  was  clone  and  said,  as  well  as 
from  loose,  imperfect  memoranda.  Wli}^  then  should  the 
accuracy  of  his  memory  not  be  tested  by  the  memory  of 
other  persons  then  present,  and  more  especially  by  tliat  of 
the  judges,  whom  he  may  have  imperfectly  understood? 
Why  may  not  the  trial  of  an  issue  as  to  the  correctness  of  a 
written  memorial,  be  brought  to  a  more  just  and  satisfac- 
tory conclusion  by  hearing  all  the  proofs  offered  by  both 
parties,  tending  to  throw  any  light  upon  the  controversy, 
than  by  confining  the  investigation  to  a  mere  inspection  of 
such  evidence  as  happens  to  be  on  or  among  the  records  in 
the  case — these  records  all  confessedly  liable  to  the  same 
errors  and  omissions  as  the  one  sought  to  be  reformed. 
Some  of  the  courts  profess  to  acquire  their  correctory  power 
over  their  records  s(^lely  by  virtue  of  the  English  Statutes 
of  Amendments  and  Jeofails,^  while  others  insist  that  it  has 
a  higher  source  and  a  wider  application,  and  exists  by  vir- 
tue of  high  equity  powers  residing  in  the  court  and  enabling 
it  to  compel  its  records  to  speak  the  truth.  ^ 

§  72^ .  Notice  of  Application.  —  Whenever  an  amend- 
ment of  a  judgment  or  decree  is  sought,  notice  should  be 
given  to  the  adverse  party  of  the  motion  to  amend.  That 
impartiality,  which  ought  to  distinguish  the  proceedings  of 
all  judicial  tribunals,  requires  that  no  matter  be  consid- 
ered by  any  court  without  giving  both  parties  a  full  and 
fair  opportunity  to  be  heard.  In  regard  to  the  amendment 
of  judgments,  the  authorities  fully  sustain  the  view  that  the 
courts  will  not  act  upon  an  ex  parte  application.  ^  An  ex- 
ception to  this  rule  may  be  allowed  where  the  amendment 
is  made  from  the  record  alone,  and  the  judgment,  as  pro- 
posed to  be  amended,  is  not  difi'erent  from  what  it  would 
have  been  construed  to  be,  independent  of  the  amendment. 
"No  one's  rights  are  affected  by  it,  as  the  efiect  of  the 
record  is  not  changed.  All  who  ^may  have  consulted  the 
record,  or  acted  upon  the  faith  of  it,  must  be  presumed  to 


1  Makepeace  v.  Lukens,  27  Ind. 
435. 

2 King  V.  State,  4  Eng.  188. 

sWallis  V.  Thomas,  7  Ves.  292; 
Kadenhurst  v.  Eeyuolds,  11  Grant's 


U.  C.  521;  Wooster  v.  Glover,  37 
Conn.  315;  McNairy  u.  Castlebury,  6 
Tex.  286;  Rockland  Water  Co.  v. 
PUlsbury,  66  Me.  427. 

69 


§72a-74 


LAW   OF  JUDGMENTS. 


[Chap.  IV. 


have  notice  of  all  wliicli  the  proper  constructiou   of   the 

whole  record  discloses;  in  other  words,  of  the  effect  of  the 

d'»  1 

g  73.  Tardy  Applications. — Applications  for  the  correc- 
tion of  clerical  errors  must  be  made  promptly  after  their 
discovery.  An  application  was  denied  in  the  Court  of  Chan- 
cery in  NeAv  York,  on  the  sole  ground  that  the  applicant 
had  not  proceeded  at  once,  after  his  attention  had  been 
called  to  the  alleged  error,  but  had  laid  idle  over  a  year.  - 

g  74.  Rights  of  Third  Persons. — Amendments  of  the 
entries  of  judgments  and  of  decrees,  like  orders  for  their 
entry  nunc  i^ro  tunc,  will  only  be  permitted  in  furtherance 
of  justice,  and  on  such  terms  as  shall  protect  the  interests 
of  third  parties  acquired  for  a  valuable  considerati^Dn  with- 
out notice.  3 


1  Emery  v.  "Whitwell,  G  Micli.  491. 
sEogersf.  Eogers,  1  Pai.  Ch.  188. 
SMcCormack  v.  Vv'lieeler,    3G  111. 

70 


114;  Atlm'r  of  Ligou  v.  Rogers,  12 
Geo.  281;  Perdue  u.  Bradsbaw,  18 
Geo.  287. 


Chap,  v.]  THE  JUDGMENT  EOLL.  g75 


CHAPTER  Y. 

THE  KECORD,  OK  JUDGMENT  ROLL. 

§  75.  Origin. 

§  7C.  Yeritj'. 

§  77.  The  Postm. 

%  78.  What  constitutes  the  Roll. 

§  79.  What  does  not. 

§  80.  Provisions  of  the  Codes. 

§  81.  Construction  of  the  Code  Provisions. 

§  82.  In  California  and  Nevada. 

§  83.  Construction  in  California. 

§  84.  Interlocutory  Judgments. 

§  85.  New  Trial  has  record  of  its  own. 

§  86.  States  where  no  record  is  made  up. 

§  87.  Want  of,  does  not  affect  Judgments. 

§  88.  In  Chancery. 

§  89.  Replacing  Lost  Rolls. 

§  89a.  Chancery  cannot  replace. 

g  75.  Origin. — The  judgment  roll  or  record  is  so  insep- 
arably connected  with  the  judgment  itself  as  to  require 
some  notice  in  this  work.  In  the  primitive  stages  of  our 
common  law,  the  pleadings  were  oral.  The  litigants  ap- 
peared in  court,  and  there  carried  on  their  legal  alterca- 
tions, the  plaintiff  stating  the  grounds  which,  in  his  opinion, 
entitled  him  to  the  interposition  of  the  court;  and  the 
defendant  resisting  those  statements,  by  denying  either  their 
sufficiency  in  law  or  their  truthfulness,  or  by  showing  some 
fact  depriving  them  of  their  ordinary  force  and  effect.  The 
process  of  statement  and  counter-statement  continued  until 
the  court  understood  the  point  of  difference,  or,  in  other 
words,  until  an  issue  was  formed.  During  all  this  time  an 
officer  of  the  court  was  in  attendance,  charged  with  the 
duty  of  making  brief  memoranda  of  the  respective  allega- 
tions of  the  parties,  and  of  the  acts  of  the  court,  upon  a  roll 
of  parchment.  Parchment  was  so  early  and  so  constantly 
used  for  this  purpose  that  it  came  to  be  regarded  as  an 
essential  and  indispensable  part  of  the  record.  The  manner 
and  time  in  which  the  record  was  made  up,  occasioned  the 

71 


§§75-77  LAW  OF  JUDGMENTS.  [Cliap.    V. 

use  of  words  of  the  present  tense,  as  the  '  *  plaintiff  com- 
plains "  and  "brings  suit,"  the  defendant  "comes  and 
defends"  and  "prays  judgment,"  "  tlic  jury  come  and  say," 
and  "the  judgment  of  the  court  is  that  it  is  considered." 
These  words  continued  in  use,  when,  by  more  modern  prac- 
tice, the  record  became  a  subsequent  instead  of  a  con- 
temporaneous memorial. 

§  76.  Verity. — The  record  was  kept  in  formal  language, 
with  great  care  and  precision.  Its  formality  and  prcjcision, 
together  with  its  contemporaneous  character,  gave  it  great 
authenticity.  It  became  exclusively  admissible  evii'.ence  of 
the  matter  properly  included  in  it,  and  of  such  "uncontrol- 
lable credit  and  verity  as  to  admit  of  no  averment,  plea,  or 
proof  to  the  contrary."  It  became  a  mark  of  distinction 
to  the  class  of  courts  in  which  it  could  be  kept,  and  fur- 
nished the  basis  for  a  line  of  decisions  which  enhanced  the 
dignity  and  importance  of  courts  of  record,  and  gave  to  their 
judgments  and  proceedings  a  i^rbna  facie  credit  and  respect 
never  accorded  to  those  of  courts  not  of  record. 

§  77.     The  Postea. — After  the  pleadings  were  written  in- 
stead of  oral,  the  record  was  continued.     If  an  issue  of  fact 
was  made  by  the  pleadings,  it  was  referred  to  some  appro- 
priate  method  of  trial.      The  record  was  then  made  up, 
consisting  of  the  placita,  brief  statement  of  the  nature  of 
the  action,  a  transcript  of  the  allegations  of  facts,  time  of 
appearance,  the  various  acts  of  the  court,  and  the  award  of 
trial.      Fifty-three   cases   were   brought   to   the    Supreme 
Court   of  Illinois   at   one   term,    all   of  which   were   con- 
sidered  as  liable   to   reversal,  for   containing  no  placita. 
This   deficiency,  it   was   held,  could  not  be   sujjplied   by 
reference  to  bills  of  exceptions  appearing  in  the  record ; 
because,  without  the  placita,  there  was  nothing  to  show 
any  authority  in  the  court  to  render  judgment  nor  to  make 
a  hill  of  exceptions.^     The  history  of  the  case  after  this  is 
called  the  postea.     It  shows  the  day  of  trial,  before  whom 
the  trial  took  place,  the  appearance  or  default,  the  sum- 
moning  and   the   choice   of  the  jury,   and   their   verdict. 

iP.  M.  L.  Co.  u.  Chicago,  5G  lU.  304. 

72  i 


Cliap.  v.]  OF  WHAT  COMPOSED.  §§77-78 

The  record  was  m.ade  compact  and  continuous  by  "Contin- 
uances," or  entries  of  the  adjournment  of  the  cause  from  time 
to  time,  by  which  the  parties  were  temporarily  dismissed,  and 
a  day  fixed  for  their  subsequent  appearance.  After  tlie  return 
of  the  record  with  its  posica,  the  case  being  ready  for  judgment, 
the  allowance  of  the  proper  officer  may  be  obtained,  express- 
ing generally  that  judgment  is  given,  and  in  Avhose  favor. 
This  is  called  "  Signing  Judgment."  The  next  step  is  to  put 
the  judgment  on  record.  If  no  trial  has  been  had,  a  record 
is  now  made  up  for  the  first  time.  But  if  trial  has  been  had, 
the  whole  proceedings,  though  already  made  up,  are  again 
entered  on  a  roll  of  parchment.  This  proceeding  is  *'  Enter- 
ing the  Judgment."  Though  nominally  the  act  of  the  court, 
the  duty  of  seeing  it  done  in  proper  form  devolves  upon  the 
prevailing  party.  This  last  roll  is  dej)osited  in  the  treasury 
of  the  court,  and  is  known  as  the  "Judgment  Eoll,"  and  is 
also  frequently  styled  "The  Eecord."^ 

§  78.  Of  what  Composed. — The  verity  conceded  to  the 
judgment  roll  applies  to  nothing  which  it  is  not  the  duty  of 
the  clerk  to  record.  ^  Nothing  can  be  made  a  matter  of 
record  by  calling  it  by  that  name,  nor  by  inserting  it  among 
the  proper  matters  of  record.^  It  is,  therefore,  exceed- 
ingly important  to  understand  what  is  or  is  not  a  part  of  the 
judgment  roll;  what  imports  absolute  verity;  what  will  be 
considered  in  proceedings  in  the  nature  of  writs  of  error; 
and  precisely  what  has  authority  to  speak  for  or  against  the 
judgment  in  a  collateral  proceeding.  While  the  record  is, 
in  general  terms,  a  history  of  the  proceedings,  many  things 
done  in  the  progress  of  a  case  are  not  necessarily  nor  ordi- 
narily matters  of  record.  It  is  to  be  regretted  that  the 
courts  have  been  contejited  with  peremptorily  excluding 
many  papers  claimed  to  be  parts  of  the  record,  but  have 
rarely  attempted  to  specify  or  describe  those  matters  which 


1  In  relation  to  the  matters  con- 
tained in  the  three  preceding  sections, 
consult:  Steph,  PI.  25,  111;  Bnrrill 
Pr.  12,  16;  3  Bl.  Comm.  386-7;  Co. 
Litt.  -60  a. ;  Burrills  &  Bouvier's  Law 
Dictionaries,  Title  "Kecord." 

SDouglas  V,  Wickwire,   19   Conn.- 


489;  Hahn  r.  Kelly,  3-t  Cal.  319,  by 
Sawyer,  J. 

3 Nichols  V.  Bridgeport,  27  Conn. 
459;  Kitchens  v.  Hutchius,  44  Geo. 
G20;  Abbot  i\  nachman,  2  S.  &  M. 
510. 

73 


§§78-79  LAW  OF  JUDGMENTS.  [Cliap.  V. 

possess  an  inclofeasible  claim  to  a  place  in  the  judgment 
roll.  In  Virginia,  the  question,  What  is  a  common  law 
record,  was  answered  thus:  "It  is  the  writ  for  the  purpose 
of  amending  by,  if  necessary,"  all  the  pleadings,  "papers 
of  which  profert  is  made,  or  oyer  demanded,"  x^'T-pers  sub- 
mitted to  the  court  by  bills  of  exceptions,  demurrers  to 
evidence,  or  special  verdict,  and  such  papers  as  are  insep- 
arably connected  with  those  so  submitted,  and  the  several 
proceedings  at  the  rules  or  in  court  until  the  rendition  of 
the  judgment.  These,  and  no  other,  are  to  be  noticed  by 
the  court.  '  In  the  case  of  papers  of  which  oyer  is  de- 
manded, the  rule  laid  down  above,  must  be  limited  to  those 
instances  where  the  record  shows  oyer  to  have  been  granted 
by  the  court  or  conceded  by  the  party, "  And  the  instru- 
ment will  become  part  of  the  record  if  oyer  be  granted  or 
co?iceded,  though  it  be  unsealed,  and  therefore  not  a  paper  of 
which  oyer  can  be  properly  demanded.^  Oyer  of  an  instru- 
ment does  not  include  oyer  of  an  alleged  assignment,  nor 
will  it  make  such  assignment  matter  of  record.  '^  The  writ, 
or  summons,  is  probably  a  part,  of  the  judgment  roll,^  but 
on  this  subject  the  authorities  disagree." 

§  79.  Matters  Not  of  Record.  —  No  general  definition 
has  been  attempted  by  which  to  determine  what  are  not 
matters  of  record.  In  one  case  the  rule  is  stated,  as  without 
exception,  that,  "  No  act  in  pais  of  any  party  to  a  suit  can 
be  made  any  part  of  the  record  except  by  bill  of  excep- 
tions."'' In  another  case,  "  all  intermediate  proceedings 
of  an  informal,  collateral,  and  so  to  speak,  accidental  and 
uncertain  character,  not  involving  directly  the  merits  of  the 
case,  but  rather  appertaining  to  modes  of  proceeding,"  are 
specified  as  forming  no  part  of  the  judgment  roll.^  Among 
the  matters  which  are  not  (unless  made  so  by  bill  of  excep- 
tions or  by  consent,  or  by  order  of  court)  matters  of  record, 


1  Mandevillo  v.  Perry,  6  Call.  78. 

2  Cummins  v.  Woodruff,  5  Pike, 
IIC;  Clark  v.  Gibson,  2  Pike,  109: 
Hanly  v.  Real  Estate  Bank,  4  Pike, 
598. 

SEussell  V.  Drummond,  G  Ind.  216. 

4Crary  v.  Ashley,  4  Pike,  202. 

5  Montgomery  v.  Carpenter,  5  Pike, 

74 


2G4 ;  Kibble  v.  Butler,  14  S.  &  M. 
207. 

6  Childs  V.  Eisk,  1  Morris,  439  ; 
Hays  ?j.  McKec,  2  Blkf.  11. 

1  Kibble  v.  Butler,  14  S.  &  M.  207. 

8  Nichols  V.  City  of  Bridgeport,  27 
Conn.  459. 


Chap,  v.] 


STATUTES. 


g§79-80 


are  all  matters  of  evidence,  written  or  oral/  including  note,  ^ 
bond,"''  or  mortgage^  filed  in  the  case,  and  upon  which  suit 
is  brought,  and  agreed  statement  of  facts*  not  in  nature  of 
special  verdict;  all  motions, '^  including  motions  to  quash 
the  writ,  "^  to  amend  the  pleadings,  for  extensions  of  time, 
for  continuances,  for  bonds,   for  prosecution,  for  bills  of 
particulars,  "^  pleas  stricken  from  the  files,  ^  notices  of  mo- 
tions,^ affidavits  of  claimants,^"  bonds  for  trial  of  rights  of 
property,''  affidavits  in  relation  to  conduct  of  jurors,'^  all 
affidavits  taken  during  the  progress  of  the  cause,''  memoran- 
dum of  costs,"  power  of  attorney  to  confess  the  judgment 
and  affidavit  in  relation  to  the  death  of  the  maker  thereof,'' 
report  of  judge  of  proceedings  at  the  trial,  reasons  for  his 
opinion  in  rendering  judgment  or  in  deciding  application 
for  a  new  trial,'"  rulings  of  the  court  upon  the  admission  of 
evidence,  the  instructions  to  the  jury,  statement  of  facts 
made  by  the  judge  for  the  purpose  of  taking  the  advice  of 
the  appellate  court,''  and  a  ruling  of  the  court  upon  an  ap- 
plication to  strike  out  a  portion  of  the  pleadings. 


18 


g  80.     Statutes. — In  several   of   the  States  the  matters 
constituting  the  judgment  roll  are  specified  by  statute.     In 


1  Lovell  V.  Kelley,  48  Maine,  2G3  ; 
Cnnningliamu.  Mitchell,  4  Kand,  189; 
Clark  V.  Gibson,  2  Pike,  109  ;  Cole  v. 
Driskell,  1  Blkf.  17. 

2  Starbird  v.  Eaton,  42  Mai.  596  ; 
Storer  v.  White,  ,7  Mass.  448  ;  Pierce 
V.  Adams,  8  Mass.  383. 

2a  Crome  v.  Van  Nortwick,  56  111. 
353. 

3  Kirby  v.  Wood,  16  Maine,  81. 

4  Bank  of  Va  v.  Bank  of  Chilli- 
cothe,  IG  Ohio,  170. 

5  United  States  v.  Gamble,  10  Mo. 
457  :  Abbie  v.  Higgins,  2  Iowa,  535  ; 
Christy's  Adm'r  v.  Myers,  21  Mo. 
112. 

6  Hinton  v.  Brown,  1  Blkf.  429. 

1  Nichols  V.  Bridgeport,  27  Conn. 
459. 

8  Walker  v.  Wills,  5  Pike,  166  ;  and 
Kelly  V.  Matthews,  5  Pike,  223  ;  Chris- 
man  V.  Melne,  6  Ind.  487. 


9  Bich  V.  Hathaway,  18  111.  548. 
loiubble   V.   Butler,    14    S.    &  M. 
207. 

11  Kirksey  v.  Bates,  1  Ala.  303. 

12  Mann  v.  Eussell,  11  111.  586. 

13  Bluzzard  v.  Phebus,  35  Ind.  284. 
i*Valentine  v.   Norton,    30    Maine, 

194;  McArthurv.  Starrett,  43  Maine, 
345. 

i^Hodges  V.  Ashurst,  2  Ala.  301; 
Magher  v.  Howe,  12  111.  379. 

I'^Coolidge  V.  Inglee,  13  Mass.  50; 
Cathcart  v.  Commonwealth,  37  Penn. 
S.  108. 

I'Nichols  V.  City  of  Bridgeport,  27 
Conn.  459. 

ispeely  v.  Shirley,  43  Cal.  369; 
Moore  v.  De  Valle,  28  Cal.  174;  A. 
Nev  &  S.  Canal  Co.  v.  Kidd,  43  Cal. 
181. 


l 


75 


g80  LAW   OF  JUDGMENTS.  [Chap.    V. 

most  cases,  however,  the  specification  is  sufficiently  general 
and  indistinct  as  to  create  a  necessity  for  judicial  construc- 
tion. In  New  York  and  Wisconsin  the  following  papers 
are  attached  together  and  filed,  and  constitute  the  judg- 
ment roll : 

"1.  In  case  the  complaint  be  not  answered  by  any  de- 
fendant, the  summons  and  complaint,  or  copies  thereof, 
proof  of  service,  and  that  no  answer  has  been  received,  the 
rex^ort,  if  any,  and  a  copy  of  the  judgment. 

''2.  In  all  other  cases,  the  summons,  pleadings  or  copies 
thereof,  and  a  copy  of  the  judgment,  with  any  verdict  or 
report,  the  offer  of  the  defendant,  exceptions,  case,  and  all 
orders  and  papers  in  any  way  involving  the  merits  and 
necessarily  affecting  the  judgment.'"  The  statute  of  Ore- 
gon" corresponds  substantially  Avith  that  of  New  York,  in 
this  respect,  except  that  in  cases  where  answer  is  filed,  the 
roll,  in  addition  to  the  matters  enumerated,  in  the  New 
York  Code,  must  contain  the  proof  of  service,  all  orders  re- 
lating to  a  change  of  parties,  and  instead  of  "  all  orders  and 
papers,"  all  journal  entries,  or  orders  involving  the  merits 
or  necessarily  affecting  the  judgment.  In  Ohio,  Nebraska, 
Dakota  and  Kansas,  the  clerk  is  required  to  make  a  com- 
plete record  of  every  cause  from  the  petition,  process,  re- 
turn, pleadings,  reports,  verdicts,  orders,  judgment,  and  all 
material  acts  and  proceedings  of  the  court;  but  if  items  of 
account  or  copies  of  papers  attached  to  the  pleadings  be 
voluminous,  the  court  may  order  an  abbreviation,  or  a 
pertinent  description  thereof.  Except  in  Kansas,  he  is  for- 
bidden from  recording  the  evidence.''  In  Georgia,  the  clerk 
must  record  in  a  well  bound  book,  within  six  months  after 
the  final  determination  of  each  cause,  all  proceedings  relat- 
ing thereto;*  in  Alabama  a  statute,  otherwise  similar  in  this 
respect,  excepts  from  the  record  subpoenas,  affidavits  for 
continuance,  commissions  to  take  testimony,  evidence,  and 
the  execution.^ 


iCode  of  N.  Y.   $281;    R.   S.  of 
Wis.  Ed.  of  1858,  Ch.  132,  $  35. 
2  Code  of  Oregon,  $249. 
gCode  of  Ohio,  $  390;  Code  of  Ne- 

76 


braska,  §  446;  Code  of  Dakota,  §  402; 
Code  of  Kansas,  §$  415,  416,  417,  418. 

4  Code  of  Georgia,  $  256. 

0  Code  of  Alabama,  §  7G7. 


Chap.  V.J  IN  CALIFORNIA  AND   NEVADA.  §§81-82 

§81.  Construction  of  Codes. — These  statutes  have  not 
done  much  toward  answering  the  question,  What  is  the 
record?  After  enumerating  the  matters  obviously  indis- 
pensable to  every  judgment  roll;  after  being  precise  where 
precision  had  already  been  attained,  they  employ  terms 
whose  significition  is  as  unlimited  as  are  the  confines  of 
space;  whose  application  to  the  practical  affairs  of  men 
must  be  as  diverse  as  are  the  temperaments  and  the  intel- 
lects of  the  judges  by  whom  the  application  happens  to  be 
made.  Who  shall  be  able  to  determine  with  unerring  ac- 
curacy what  "proceedings  and  acts  of  the  court  are  mate- 
rial;" what  "papers,  orders  or  journal  entries  necessarily 
affect  the  judgment  and  involve  the  merits  of  the  action." 
Some  of  the  matters  excluded  from  the  judgment  roll  under 
these  statutes,  and  which,  though  included  by  the  clerk  as 
parts  of  the  record,  will  be  disregarded  by  the  courts,  are 
motions  and  the  papers  on  w;hich  they  are  founded,  together 
with  the  ruling  of  the  court  thereon;^  matters  of  evidence, 
oral  or  written,"  including  notes^  and  mortgages*  filed  in 
the  case  and  constituting  the  cause  of  action,  and  proof  of 
the  filing  of  lis  pendens;^  memoranda  of  costs  and  notice  of 
adjustment,^  the  affidavit  requisite  to  authorize  the  taking 
of  property  in  replevin,  "^  afiidavit  and  order  of  arrest,  ^  proof 
of  service  when  the  defendant  has  answered  or  demurred,  ^ 
bill  of  particulars,''  pleadings  amended  or  demurrer  aban- 
doned,'^  opinion  of  the  judge, '^  affidavit  used  in  supj)ort 
of  a  motion/^  minutes  made  by  the  judge  upon  the  trial 
docket.'' 

§  82.  In  California  and  Nevada.  —  In  California  and 
Nevada,  the  law  providing  for  the  judgment  roll  is  distinct 
and  specific.  The  matters  which  may  properly  be  inserted 
in  it  are  so  clearly  enumerated  as  leave  no  necessity  for 


1  Cornell  v.  Davis,  16  Wis.  68G; 
Demming  v.  "Weston,  15  Wis.  236. 

sCordu.  Southwell,  15  Wis.  211. 

sEeid  V.  Case,  \l  Wis.  429. 

4 Cord  V.  Southwell,  15  Wis.  211. 

5 Manning  v.  McClurg,  14  Wis. 
350. 

6S.  &  S.  riank  Road  Co.  u.  Thatch- 
er, 6  How.  P.  220. 


■! Kerrigan  v.  Ptay,  10  How.  P.  213. 
SCorv.in  v,  Freelaud,  2  Seld.  560. 
9  Smiths.  Holmes,  19  N.  Y.  271. 
^"Kreiss  v,  Seligman,  8  Barb.  439. 
"Brown  v.  Saratoga  E.  E.  Co.,  18 
N.  Y. 495. 

i-Thomas  v.  Tanner,  14  How.P.  426. 
i^Backus  V.  Clark,  1  Kansas,  303. 
^^Pennock  v.  Monroe,  5  Kansas,  578. 

77 


§§82-83  LAW  OF  JUDGMENTS.  [Cliap.   V. 

doubt.  Section  670  of  tlie  Code  of  Civil  Procedure,  re- 
cently adopted  in  the  first  named  State,  re-enacts  section 
two  hundred  and  three  of  the  Practice  Act,  with  one  addi- 
tion, that  of  the  proof  of  service  of  summons  when  the  an- 
swer has  been  filed.  It  enacts  that  the  judgment  roll  shall 
consist : 

1.  If  no  answer  is  filed  by  any  defendant,  of  the  com- 
plaint, summons,  affidavit,  or  proof  of  service,  memoran- 
dum of  default,  and  copy  of  the  judgment. 

2.  In  other  cases,  of  summons,  proof  of  service,  plead- 
ings, verdict  of  jury  or  finding  of  the  court,  commissioner, 
or  referee,  bills  of  exception  taken  and  filed,  copies  of  or- 
ders sustaining  or  overruling  demurrers,  copy  of  the  judg- 
ment and  of  orders  relating  to  change  of  the  parties. 

In  Nevada,  the  roll,  in  the  event  of  no  answer  being  filed, 
is  made  up  of  the  same  materials  as  in  California;  in  all 
other  cases,  it  consists  of  nothing  but  the  summons,  plead- 
ings, copy  of  judgment,  and  of  any  orders  relating  to  a 
change  of  the  parties.^ 

§  83.  Construction.  —  In  California  it  has  been  deter- 
mined, by  a  majority  of  the  judges  of  the  Supreme  Court, 
Justices  Sanderson  and  Sawyer  dissenting,  that  an  answer 
stricken  out  is  nevertheless  entitled  to  a  place  in  the  judg- 
ment roll.  "The  phrase  'struck  out,'  as  applied  to  a 
pleading,  is  figurative  only.  An  order  sustaining  a  demur- 
rer to  a  pleading,  defeats  or  suspends  for  a  time  its  legal 
effect  in  the  action,  and  a  successful  motion  to  strike  out  an 
answer  does  no  more.  In  either  event,  the  pleading,  as  a 
document,  remains  in  official  custody."  Such  was  the  rea- 
soning of  the  majority  of  the  court.  The  minority  said, 
with  at  least  equal  reason,  "After  the  answer  was  stricken 
out,  the  document  remained  on  the  files  as  a  part  of  the 
history  of  the  case ;  but  it  was  no  longer,  in  legal  contem- 
plation, a  pleading  in  the  case."^  In  two  cases,  Braly  v. 
Seaman,  30  Cal.  GIO,  and  Forbes  v.  Hyde,  31  Cal.  342,  the 
decisions  were  founded  upon  the  assumption  that  in  cases 
where  no  answer  was  filed,  and  the  defendant  was  served 
by  means  of  publication,  the  affidavit  on  which  the  order  of 

^  §  205,  p.  228,  Stat,  of  Nev.  of  18G9.  ]     ^  Abbott  v.  Douglass,  28  Cal.  298-9. 
78 


Chap,  v.]  NEW  TVJAL.  g§83-85 

publication  was  based,  and  also  the  order  itself,  were  parts 
of  tlio  judgment  roll.  These  decisions,  so  far  as  they  af- 
fected this  matter,  were  made  upon  the  concession  of  coun- 
sel in  the  case,  and  without  the  consideration  of  the  court. 
Neither  the  order  nor  the  affidavit  belongs  in  the  judgment 
roll,  and  both  will  be  disregarded  if  put  there.  The  affida- 
vit showing  the  fact  of  publication  of  summons  in  a  news- 
paper, and  the  deposit  of  summons  and  complaint  in  the 
post  office,  being  "i^roof  of  service,"  must  be  attached  to 
the  roll.^  The  affidavit  and  notice  upon  which  a  motion  was 
made,^  and  an  order  submitting  a  demurrer  taken  under  ad- 
visement,"' and  the  ruling  of  the  court  in  striking  out  an 
answer,^  are  not  x^arts  of  the  record. 

§  84.  Interlocutory  Judgments. — "The  statute  does  not 
expressly  provide  that  an  interlocutory  judgment  shall  con- 
stitute a  portion  of  the  judgment  roll;  but  as  such  judg- 
ments often  determine  the  rights  of  the  respective  parties, 
there  is  a  manifest  propriety  in  inserting  them  in  the  judg- 
ment roll.  We  are  of  the  opinion  that  an  interlocutory 
judgment  comes  within  the  meaning  of  the  statutory  re- 
quirement, that  the  judgment  shall  constitute  a  portion  of 
the  judgment  roll."^ 

g  85.  New  Trial. — The  position  which  proceedings  to 
obtain  a  new  trial  occupy  in  relation  to  the  judgment  roll, 
is  very  different  under  our  practice  from  that  which  they 
occupied  toward  the  judgment  roll  at  common  law.  There, 
the  motion  for  a  new  trial  was  made  and  disposed  of  before 
the  judgment  was  entered.  It,  therefore,  found  its  appro- 
priate history  in  the  same  place  with  all  the  other  proceed- 
ings taken  prior  to  making  up  the  record.  But  when  the 
motion  is  made  after  the  entry  of  the  judgment,  or,  though 
made  before,  is  disposed  of  after,  then  it  must  possess  a 
record  of  its  own,  independent  of  the  judgment  roll.  The 
result  of  this  is,  that  while  the  judgment  roll  passes  out  of 
the  "breast  of  the  judge  and  beyond  his  control  by  lapse 


1  Halm  V.  Kelly,  31  bid.  391;  Sharp 
V.  Dangney,  33  Cal.  505;  Galpiu  v. 
Page,  1  Saw.  C.  C.  321. 

2  Dimick  v.  Campbell,  31  Cal.  238. 


3  Anderson  v.  Fisk,  36  Cal.  G25. 
4Feely  v.  Shirley,  43  Cal.  3G9. 
6  Packard  v.  Bird,  40  Cal.  378. 

79 


§^85-87  LAW  OF  JIT)GMENTS.  [Chap.  V. 

of  the  term,"  the  record  of  the  new  trial  still  remains  in 
fieri,  and  will  so  remain,  unaffected  by  the  adjournment  of 
the  term,  and  susceptible  of  alteration  and  amendment, 
until  the  motion  is  finally  granted  or  denied.' 

§  86.  States  Where  No  Record  is  Made  Up. — In  some 
of  the  States  no  record  is  made  up,  none  being  required  by 
law.-  In  these  States  the  files  and  journal  entries  probably 
stand  in  place  of  the  record  and  are  entitled  to  similar 
verity.  ^  In  other  of  the  States,  as  in  Pennsylvania  and 
Maryland,  the  keeping  of  records  fell  into  great  confusion 
and  neglect.  For  a  long  period  of  time  little  more  was 
done  by  the  prothonotaries,  in  most  of  the  courts  of  these 
States,  than  to  make  such  memoranda  as  would  guide  them 
in  issuing  executions,  and  as  would  have  enabled  them  to 
draw  vip  a  formal  judgment  roll.  Judgments,  supported 
only  by  these  informal  memoranda,  were,  however,  admit- 
ted in  the  highest  courts.  The  loose  practice,  it  was  thought, 
had  prevailed  so  long  and  so  universally;  had  been  so  thor- 
oughly acquiesced  in  by  bench  and  by  bar;  and  had  been 
made  the  foundation  on  which  so  many  private  interests  of 
great  extent  and  variety  were  based,  that  the  adjudications, 
sufficiently  though  informally,  attested  by  it  ought  not  to  be 
ignored;  that  while  the  entries  and  memoranda  gave  data 
from  which  a  record  as  technical  and  prolix  as  any  ever 
drawn  in  the  court  of  King's  Bench,  could  be  readily  con- 
structed, they  ought  to  be  regarded  as  competent  and  satis- 
factory evidence  of  the  judgment,  and  of  such  other 
judicial  proceedings  as  were  necessary  to  support  it.^ 

g  87.  Want  of  Judgment  RoU.— *'The  judgment  does 
not  depend  upon  the  performance  of  the  clerical  duty  of 


1  Spanagel  v.  Dellingor,  34  Cal.  476. 

2 Morrow  v.  Weed,  4  Clarke,  77, 
127;  and  Norwell  v.  McHenry,  1 
Mich.  227;  Lothrop  u.  Southworth,  5 
Mich.  43(5. 

3  Thayer  v.  McGee,  20  Mich.  195. 

4  S.  P.  Co.  V.  Sickles,  24  How.  U. 
S.  333;  Cromwell  v.  Bank  of  Pitts- 
burg, 2  Wall.  Jr.  569. 

The  opinion  of  Justice  Grier  in  the 

80 


last  named  case  is  exceedingly  inter- 
esting. It  presents  in  a  graphic  and 
somewhat  humorous  style,  the  history 
of  judicial  records  in  Pennsylvania, 
the  brevity  with  which  they  were  en- 
tered, the  little  importance  attached 
to  their  preservation,  and,  finally,  the 
worthy  character  and  eccentric  or- 
thography of  the  prothonotaries. 


Chap,  v.] 


REPLACING  LOST  EECORDS. 


§^87-80 


making  up  tlio  judgment  roll,  or  preserving  the  papers."* 
The  papers  constituting  the  roll,  are  therefore  proper  evi- 
dence and  well  support  an  execution,  though  they  have 
never  been  attached  together. "  In  New  York,  the  rule  that 
omissions  in  the  roll  do  not  invalidate  the  judgment,  has 
been  applied  where  the  omission  consisted  of  the  original 
summons,^  of  an  order  of  reference/  of  the  copy  of  ver- 
dict, "  of  the  answer  of  defendant. " 

§  88.  In  Chancery,  all  the  proceedings,  including  the 
evidence,  are  either  written  or  required  to  be  reduced  to 
writing.  It  is  said,  therefore,  that  everything  so  reduced 
to  writing,  becomes  a  part  of  the  record,  and  as  such,  will 
be  investigated  by  the  appellate  court.'' 

§  89.  Replacing  Lost  Reoords. — The  rule  that  the  record 
imports  absolute  verity,  and  is  exclusively  admissible  evi- 
dence of  the  matters  properly  incorporated  in  it,  might 
occasion  much  mischief,  if  the  courts  did  not  possess  and 
exercise  a  power,  unaffected  by  lapse  of  time,  to  replace 
whatever  may  have  been  defaced,  lost  or  destroyed  by  acci- 
dent, negligence  or  wantonness.  The  making  up  of  a  new 
roll  was  ordered  as  a  matter  of  course  in  England,  thirty 
years  subsequent  to  the  filing  of  the  old  one.^  In  New 
York,  a  new  nisi  prius  record  was  allowed  to  be  filed,  and  a 
posted,  indorsed  thereon,  the  applicant  showing  by  affidavit 
that,  six  years  before,  a  verdict  had  been  taken  and  judg- 
ment thereon  given,  and  that  the  nisi  prius  record  and  issue 
roll  could  not  be  found.  ^  In  other  States,  the  power  of 
courts  of  record  to  supply,  on  proper  proof,  their  own  lost 
or  destroyed  records  is  affirmed  to  exist,  independent  of  any 
statute,  by  virtue  of  their  inherent  powers  "to  minister 
ample  justice  to  all  persons  according  to  law."  The  prac- 
tice in  proceedings  invoking  this  power,  should  be  by  mo- 


1  Lick  V.  Stockclale,  18  Cal.  219; 
Tutt  t\  Couzins,  50  Mo.  152;  Gilpin 
V.  Page,  1  Saw.  C.  C.  309. 

2 Sharp  r.  Lumley,  3i  Cal.  611; 
Newman's  Lessee  v.  Cincinnati,  18 
Ohio,  323. 

sHoffuung  V.  Grove,  18  Abb.  Pr. 
1-4,  142. 


4 Martin  v.  Kanouse,  2  Abb.  Pr. 
390. 

5  Cook  V.  Dickerson,  1  Duer,  G79. 

cEenoul  r.  Harris,  2  Sanf.  Gil. 

T Ferris  v.  McClure,  40  111.  99; 
Smith  V.  Newland,  40  111.  100. 

3 Douglas  I'.  Yallop,  2  Burr.  722. 

sjacksou  I'.  Smith,  1  Cai.  196. 

81 


§g89-89a 


LAW  OF  JUDGMENTS. 


[Chap.   V. 


tion  in  the  court  whose  record  it  is  proposed  to  restore. 
The  pUiiutiff  in  the  motion  should  give  reasonable  notice  to 
the  adverse  party  of  the  time  and  place,  when  and  where, 
the  application  will  be  made,  accompanied  by  a  copy  of  the 
matter  he  proposes  to  have  enrolled  as  and  for  the  lost 
record,  and  also  accompanied  by  a  copy  of  the  affidavits  in- 
tended to  be  used  at  the  hearing.  The  defendant  in  the 
motion  should  have  an  opportunity  of  appearing  and  using 
counter  affidavits.  If  it  appear  to  the  court,  at  the  hearing, 
that  the  record  is  lost  or  defaced,  and  what  its  contents 
were,  it  may  then  order  a  new  roll  to  be  made  correspond- 
ing to  the  old  one.  The  matter  thus  substituted  will  hence- 
forth be  received  in  all  courts,  and  given,  in  all  respects, 
the  same  effect  as  though  it  were  the  original  record.^ 

§  89a.  Chancery  has  no  Jurisdiction  to  Enter. — It  needs 
only  a  substantial  copy  of  the  record  intended  to  be  en- 
rolled, to  justify  the  court  in  allowing  its  substitution.  It 
must   also   be   consistent  with  the  record   remaininsr   un- 

O 

destroyed. "  The  suppljang  of  a  lost  record  is  a  matter 
of  which  the  court  where  the  record  was  made,  seems  to 
have  e?cclusive  jurisdiction.  A  party,  instead  of  making  a 
motion  in  the  court  where  the  record  had  been  made,  filed 
a  bill  in  chancery,  praying  that  a  record  lost  by  fire,  might 
be  re-established.  The  court  asserted  that  the  power  of 
supplying  a  new  record  when  the  original  was  lost,  pertained 


^  Adkinson  v.  Keel,  25  Ala.  551; 
Dodsft-ell  V.  Stewart,  11  Ala.  C20;  Me- 
Lendou  v.  Jones,  8  Ala.  298;  Pruitt 
V.  Pruitt,  43  Ala.  73;  Deshong  v. 
Cane,  1  Duv.  Ky.  309;  Pearce  v. 
Thackeray,  13  Fla.  574. 

NoTK. — The  power  which  enables 
courts  to  supjily  the  entire  record,  if 
lost  or  destroyed  after  judgment,  ex- 
tends to  supplying  any  of  the  plead- 
ings or  papers  in  civil  cases  prior  to 
the  judgment.  But  the  court  has  no 
such  power  over  an  indictment.  An 
indictment  proceeds  from  the  grand 
jury.  The  court  has  no  creative  or 
ami'ndatory  power  over  it.  If  it  is 
defective,  another  grand  jury  m\;st  be 

82 


called  upon  to  supply  the  defects. 
Probably,  if  after  conviction  and  sen- 
tence the  record  were  destroyed,  the 
court  might  supply  it  for  purposes  of 
evidence,  as  in  civil  cases.  But  the 
defendant  can  be  tried  only  on  an 
original  indictment;  the  court  has  no 
authority  to  establish  a  copy  in  the 
place  of  the  original.  If  the  original 
be  lost,  the  only  remedy  for  the  prose- 
cution is  to  have  the  defendant  re-in- 
dicted. Bradshaw's  Case,  IG  Gratt. 
507;  State  v.  Harrison,  10  Yerg.  542; 
Ganaway  v.  State,  22  Ala.  772. 

2  Shiver  v.  Shiver,  45  Ala.  333; 
Bishop's  Heirs  v,  Hampton,  19  Ala. 
792. 


Chap,    v.]  CHANCERY  JURISDICTION.  g89a 

to  courts  of  general  jurisdiction,  independent  of  legislation, 
but   sustained  a   demurrer  to  this   bill,  on   the  following 
grounds:  "  The  jurisdiction  invoked  by  the  complainant  in 
the  present  case,  has  not  been  exercised  by  any  court  of 
chancery  in  England  (so  far  as  we  have  been  able  to  dis- 
cover with  our  limited  means  of  examination),  and  the  prin- 
ciples upon  Avhich  the  court  takes  jurisdiction  in  the  case  of 
lost  instruments,   comes  far  short  of  embracing  this  case. 
The  inherent  power  of  courts  to  control  their  own  records, 
and  to  supply  losses  therein,  it  seems  is  antagonistic  to  the 
power  of  any  other  court  to  interfere  and  make  records  for 
them.     By  this  proceeding,  one  court  of  special  jurisdic- 
tion is  invoked  to  take  cognizance  of,  and  to  supply  to  an- 
other court  of  general  jurisdiction  a  record,  in  lieu  of  one 
which  has  been   destroyed.     This   power,    once  admitted, 
will  place  the  records  of  the  courts  of  common  law  at  the 
mercy  of  the  court  of  chancery,  and  might  lead  to  absurd 
conflict  between  the  law  and  equity  side  of  the  court  over 
the  records  of  the  common  law,  one  I3arty  imploring  the 
conscience  of  the  one  to  seize  the  power  of  the  other,  and 
control  the  history  of  its  past  action,  and  perhaps  to  com- 
pel the  court  of  law  to  adopt  and  acknowledge  as  a  fact,  a 
thing  of  which  it  may  deny  any  knowledge,  and  against 
which  action  the  other  party  may  justly  ask  it  to  revolt  and 
treat  as  an  usurpation,  because  its  own  power  is  ample  and 
adequate.     There  is  nothing  here  requiring  the  exercise  of 
the  conscience  of  the  court  which  may  not  be  attained  by  a 
simple  proceeding,  according  to  the  course  of  the  common 
law,  and,  therefore,  chancery  has  no  office  to  perform."' 

1  K.^el  V.  Jordau,  13  Fla.  327. 

S3 


g90  LAW  OF  JUDGMENTS.  [Chap.  VI. 


CHAPTER  YI. 

VACATING  JUDGMENTS. 

§  90.  Is  a  Cominon  Law  Power. 

§  91.  Applicatiiiu  may  bo  made  by  either  party,  but  generally  not  by  third 

persons. 
§  92.  Cases  where  third  persons  may  apply. 

§  93.  Power  to  vacate,  restricted  in  California.  ' 

§  94.  Writs  of  Error  Corum  Xobis  and  Curam  Vobis. 
%  95.  Writs  of  Audita.  Querela. 
S  96.  Vacation  after  lapse  of  the  Term. 
§  97.  Irregularities. 
§  98.  Nullities. 
§  99.  Fraud. 
§  100.  Decrees. 

§  101.  Error  no  ground  for  vacation. 
§  102.  Merits  and  Laches. 
§  103.  Notice.^ 

§  Ml.  Conditional  Vacation. 
§  104a.  Entry  of  Second  Judgment. 
§  1046.  Effect  of  Vacating  Judgment. 

§  90.  Is  a  Common  La-w  Power. — The  power  to  vacate 
judgments  was  conceded  by  the  common  law  to  all  its 
courts.^  This  power  was  exercised  in  a  great  variety  of  cir- 
cumstances, and  subject  to  various  restraints.  The  practice 
in  the  different  States  is,  in  many  respects,  so  conflicting  that 
few  rules  can  be  laid  down  as  universally  applicable.  One 
rule  is,  however,  undoubted.  It  is,  that  tiio  power  of  a 
court  over  its  judgments,  during  the  entire  term  at  which 
they  are  rendered,  is  unlimited."  Every  term  continues 
until  the  call  of  the  next  succeeding  term,  unless  previously 
adjourned  sine  die.'^  Until  that  time,  the  judgment  may  be 
modified,  or  stricken  out.'  While  the  right  to  have  a  judg- 
ment set  aside  upon  sufficient  showing,  is  secured  to  the 
applicant  by  the  granting  of  an  appeal  in  case  of  a  denial 
of  the  right,  the  x^^i'ty  whose  judgment  is  vacated  before 


'Keaip  V.  Cook,  18  Mel.  130. 

sUaderwood  v.  Sledge,  27  Ark.  295; 
Ashley  v.  Hyde,  5  Ark.  100;  State  v. 
Treasurer,  43  Mo.  228. 

8^ 


sTowusend  v.  Chew,  31  Md.  247. 
'Doss  V.  Tyaek,  14  How.  U.  S.  297; 
Taylor  v.  Lusk,  9  Iowa,  444. 


Cliap.  VI.] 


WHO   MAY  APPLY  FOR. 


§§90-91 


the  lapse  of  the  term,  Las  no  remedy.  The  action  of  tlio 
court  in  granting  a  motion  to  set  aside  a  judgment  is  dis- 
cretionary, and  not  to  be  reviewed  in  any  appellate  court. ^ 
The  power  of  vacating  a  judgment  must  be  exercised  by  the 
court,  and  not  by  a  judge  at  chambers.^  Tliis  power  must 
be  exercised  solely  by  the  judiciary.  The  legislature  can 
not  set  aside  a  judgment,  nor  can  it  empower  any  court  to 
set  aside  a  judgment  which  had  been  rendered  and  had 
passed  beyond  the  control  of  the  court  prior  to  the  passage 
of  the  act;  because  in  doing  so  the  legislature  is  exercising 
judicial  functions  not  accorded  to  it  by  the  constitution." 

§  91.  Who  may  Apply  For.  — The  application  to  set 
aside  a  judgment  may  bo  made  by  either  of  the  parties. 
The  one  who  has'been  injured  by  the  judgment  may  have 
it  vacated,  though  it  is  in  his  favor,  unless  it  was  given  at 
his  instance,  with  knowledge  on  his  part  of  its  irregularitv-^ 
In  fact,  the  propriety  and  necessity  of  striking  out  a  judg- 
ment on  application  of  him  in  whose  favor  it  is,  are  appar- 
ent. The  judgment  might  bo  so  irregular  as  to  furnish  no 
justification  for  any  proceedings  to  execute  it.  If  so,  the 
party  recovering  it  would  be  entitled  to  have  it  set  aside,  to 
enable  him  to  proceed  against  the  defendant  regularly.  Or, 
through  fraud,  mistake  or  irregularity,  the  defendant  might 
procure  a  judgment  for  much  less  than  the  amount  due.  In 
this  case,  the  plaintiiSf's  right  to  have  the  judgment  vacated 
is  as  obvious  as  though  it  was  entirely  in  favor  of  the  de- 
fendant.    As  a  general  rule,  none  but  the  parties  to  a  judg- 


1  Bolton  V.  McKinley,  22  111.  203. 

=^Ross  V.  Grange,  27  Q.  B.  (Upper 
Canada)  30G;  Mearns  v.  Grand  Trunk 
R.  W.  C,  6  Upper  Canada  L.  J.  62. 

^Arnold  v.  Kelly,  5  West  Va.  44G; 
Merrill  v.  Sherburne,  1  N.  H.  199; 
Burch  V.  Newberry,  10  N.  Y.  374; 
Lewis  V.  Webb,  3  Greenl.  32G;  Hill  i'. 
Town  of  Sunderland,  3  Vt.  507;  The 
State  V.  Wheeling  &  Belmout  Bridge 
Co.,  18  How.  U.  S.  421;  Cooley's 
Const.  Lim.  94;  Griffin  v.  Cunuiui2- 
ham,  20  Gratt.  31;  United  States  v. 
Klein,  13  Wallace,  128. 

*  Downing  v.  Still,  43  Mo.  309.  But 


the  person  applying  must  show  that 
he  was  prejudiced  by  the  judgment, 
at  its  rendition.  Hervey  v.  Edmonds, 
eS  N.  C,  243 ;  Hardin  v.  Lee,  51 
Mo.  241  ;  "  Nothing  can  be  clearer 
than  that  for  defects,  or  irregulari- 
ties not  affecting  the  jurisdiction  of 
the  court,  and  where  no  fraud  or 
collusion  is  imputed,  the  remedy 
for  such  defects  is  given  to  the 
party  alone,  and  that  another  judg- 
ment creditor  is  not  entitled  to  have 
such  proceedings  or  judgment  iet 
aside. •■'  Gere  v.  Gundlach,  57  Barb. 
15. 

85 


?^91-92 


LAW  OF  JUDGMENTS. 


[Chap.  VI. 


ment  can  liavo  it  set  aside.  Every  litigant,  if  an  adult,  is 
presumed  to  understand  bis  own  interests,  and  to  be  fully 
competent  to  protect  them  in  the  courts.  He  has  the  right 
to  waive  all  irregularities  in  proceedings  by  which  he  is 
affected,  and  is  entitled  to  exclusively  decide  upon  the  pro- 
priety of  such  waiver.  To  allow  disinterested  third  persons 
to  interpose  in  his  behalf,  and  to  undertake  the  management 
of  his  business,  according  to  their  judgment,  would  create 
intolerable  confusion  and  annoyance,  and  produce  no  desir- 
able result.  To  permit  third  persons  to  become  interested 
after  judgment,  and  to  overturn  adjudications  to  which  the 
original  parties  made  no  objection,  would  encourage  litiga- 
tion, and  disturb  the  repose  beneficial  to  society.  Therefore, 
if  the  defendant  be  the  real  as  well  as  the  nominal  party 
affected,  as  long  as  he  is  satisfied  with  the  judgment,  all 
other  persons  must  be.^  None  of  his  subsequent  assignees 
'  can  complain  for  him.  He  who  purchases  lands  liable  to  a 
judgment  lien,  cannot  have  the  judgment  vacated  for  irreg- 
ularity, to  avoid  the  lien.  The  best  position  he  can  occupy 
is  that  of  a  purchaser  cum  onere,  ^'  even  though  he  offers  to 
prove  that  he  made  a  vain  search  for  such  liens  before  com- 
pleting his  purchase.^  Third  persons  may  sometimes  have 
a  judgment  vacated  on  the  ground  that  it  is  collusive,  or 
that  the  cause  of  action  on  which  it  is  based  was  fictitious  ; 
but  they  are  not  allowed  to  take  advantage  of  errors  or 
irregularities  of  proceeding.* 

§  92.  When  Third  Persons  may  Apply. — The  rule,  that 
none  but  parties  to  the  judgment  are  permitted  to  interfere, 
admits  of  exceptions.  If  a  party  confess  judgment  for  too 
much,  or  not  in  conformity  to  the  statute,  it  may  be  set 
aside  by  a  judgment  creditor;  or  if  the  defendant  be  a  trus- 
tee about  compromising  the  rights  of  his  cestui  que  use,  by 
confession,  by  default,  by  carelessness,  or  by  a  palpably 
mistaken  view  of  his  duty,  the  court,  at  the  instance  of  the 
real  party  in  interest,  would  interpose.  The  comptroller  of 
a  city,  having  charge  of  its  finances,  has  a  right  to  have  a 
judgment  against  the  city  set  aside,  upon  showing  that  it 


1  Droxol's  Appeal,  G  Bnrr.  272. 

2  Jacobs  V.  Burgwyu,  G3  N.  C.  19G. 

86 


3  Packard  v.  Smith,  9  Wis.  184. 
4Hauer's  Appeal,  5  W.  &  S.  473. 


Cliap.    VI.]  WMTS   OF    EEEOR.  §§92-94 

was   obtained  by  tlie  collusion   or  consent  of    otlier  city 
officials/ 

§  93.     La^w  in  California. — In  California,   the  jurisdic- 
tion of  a  court  over  its  judgments,  except  where  otherwise 
expressly  provided  by  statute,  is,  unless  continued  by  some 
appropriate  proceeding,  exhausted  at  the  close  of  the  term. 
The  process  continues  to  be  subject  to  the  control  of  the 
court,  but  the  judgment  cannot  be  vacated  on  any  account.  - 
This  denial  of  the  power  of  the  courts  to  set  aside  their 
judgment,  has  probably  been  made  in  no  other  State.     On 
the  contrary,  this  power  has  been  fully  recognized  and  lib- 
erally employed  in  England  and  in  the  United  States,  both 
at  law  and  in  equity.     The  remedy  by  application  to  the 
court  in  which  judgment  was  pronounced,  seems  in  many 
States  as  complete  as  could  be  obtained  by  proceedings  in 
chancery;  and  in  nearly  all  the  States  has  entirely  super- 
seded the  remedy  of  audita  querela,  and  by  writ  of  coram 
nobis.     As  most  of  the  authorities  concede  that  a  judgment  *'  /^ 
may  now  be  vacated  on  motion,  for  any  of  the  matters  for 
which  a  writ  of  coram  nobis  or  an  audita  querela  would  for- 
merly lie,  the  consideration  of  the  matters  to  which  tliose 
remedies  were  successfully  applied,  is  material. 

§  94.  "Writs  of  Error  coram  nobis  and  coram  vobis  have 
frequently  been  treated  as  identical.  The  object  sought  by 
each  writ  is  the  same;  but  the  method  of  seeking  it  is  dif« 
ferent.  The  former  writ  issued  out  of  the  court  where  the 
error  was  alleged  to  have  occurred,  and  was  returnable  be- 
fore the  same  court.  It  recited  that  "because  in  the  record 
and  proceedings,  and  also  in  the  rendition  of  the  judgment 
of  a  plea  in  our  court  before  us,  it  is  said  a  manifest  error 
hath  happened,"  and  it  then  directs  the  judges  to  inspect 
the  "record  and  proceedings  which  before  us  now  remain," 
and  to  do  what  of  right  ought  to  be  done  to  correct  that 
error.  The  latter  writ  was  made  returnable  before  some 
superior  tribunal,  and  required  the  record  and  proceedings 


~^Yc*y^^ 


1  Lowber  v.  Mayor  of  New  York,  26 
Barb.  2G2. 

3 Baldwin  v.   Kramer,   2   Cal.  582; 


Eobb  V.   Eobb,   6   Cal.  21;     Bell  v. 
Thompson,  19  Cal.  706;  Shaw  ti.  Mc- 


Gregor, 8  Cal.  521. 


87 


g94  LAW  OF  jUDG:a:ENTS.  [Chap.  VI. 

to  be  certified  to  such  tribunal  for  its  revisory  action.-     A 
judgineut  is  not  to  bo  set  aside  because  improperly  entered, 
unless  the  shoAving  is  suflicient  to  authorize  a  writ  of  error 
coram  nobis.    If  there  be  error  in  the  process,  or  through  the 
default  or  misprision  of  the  clerk,  it  shall  be  corrected  in  the 
same  court.     But  this  writ  cannot  reach  error  in  matters  of 
law.     A  plea  in  abatement  setting  up  the  death  of  one  of 
parties,   or  that  he  is  a  slave,  or  a  lunatic,  if  oveiTuled, 
estops  the  party  who  presented  it,  from  again  urging  those 
matters  in  the  same  court;  for  in  this  case,  it  is  evident  that 
the  court  misapprehended   the   law,    but   understood   the 
facts.  ^     If,  however,  the  proceedings  are  based  upon  facts 
presumed  by  the  court  to  exist,  as  when  one  of  the  parties 
is  insane,  or  is  an  infant,  or  a  fcmme  covert,  or  has  died  be- 
fore verdict,  and  the  court  supposing  such  party  to  be  alive 
and  competent  to  appear  as  a  litigant,  renders  judgment,  it 
may  be  set  aside  by  a  writ  of  coram  nobis. '^     But  this  writ 
does  not  lie  to  correct  any  error  in  the  judgment  of  the 
court,  nor  to  contradict  or  put  in  issue  any  fact  directly 
passed  upon  and  affirmed  by  the  judgment  itself.     If  this 
could  be,  there  would  be  no  end  to  litigation.    Accordingly, 
where  the  judgment  stated  that  defendant  appeared   and 
confessed,  he  was  not  allowed  to  controvert  that  statement, 
after  the  lapse  of  the  term,  for  the  purpose  of  vacating  the 
judgment.*  The  writ. of  error  coram  nobis  is  not  intended  to 
authorize  any  court  to  review  and  revise  its  opinions:  but 
only  to  enable  it  to  recall  some  adjudication,  made  while 
some  fact  existed  which,  if  before  the  court,  would  have 
prevented  the  rendition  of  the  judgment,  and  which,  with- 
out any  fault  or  negligence  of  the  party,  was  not  presented 
to  the  court.     That  defendant  was  summoned  by  a  wrong 
name,  and  was  unable  to  find  the  declaration,  and  therefore 
did  not  appear,  does  not  entitle  him  to  this  writ.     It  is  hi^ 
own  fault  that  he  did  not  plead  the  misnomer,  or  take  judg- 
ment of  nol  jjros.'" 


1  Camp  V.  Beunct,  IG  Wend.  18. 

2  Hawkins  r.  Bowie,  9  G.  &  J.  428; 
Bridendolpli  v.  Zeller's  Admr.,  3  Md. 
323. 

3Kemp  r.  Cook,  18  ild.  130. 

88 


^riichardsou's  Exr.  v.  Joues,  12 
Gratt,  53. 

•'■'  Braudou  v.  Diggs,  I  Hciskell, 
•i72. 


CliaiD.   VI.]  AUDITA  QUERELA.  g95 

g  95.     Audita  Querela. — The  proceeding  by  writ  of  au- 
dita querela  is  said  to  Lave  commenced  about  the  tenth  year 
of  the  reign  of  Edward  the  Third.    It  gradually  gave  way  in 
England,  in  most  cases,   to  the  more  simple  and  equally 
efficient  remedy  by  motion.     It  is  nevertheless  still  used  in 
some  of  the  United  States,  and  is  sometimes  sanctioned  in 
cases  where  the  writ  of  coram  nobis  seems  peculiarly  appro- 
priate.    The  original  purpose  of  the  writ,  and  the  one  to 
which  it  is  generally  confined,  is  that  of  relieving  a  party 
from  the  wrongful  acts  of  his  adversary,  and  of  permitting 
him  to  show  any  matter  of  discharge  which  may  have  oc- 
curred since  the  rendition  of  the  judgment.^      It  is  in  the 
nature  of  a  bill  in  equity;  and  was  invented,  says  Black- 
stone,    "lest  in  any   case   there  should  be  an   oppressive 
defect  of  justice,  where  a  party  who  hath  a  good  defense  is 
too  late  to  make  it  in  the  ordinary  forms  of  law."     It  is  a 
judicial  writ  founded  upon  the  record  and  directed  to  the 
court  where  the  record  remains.  ^     It  has  the  usual  incidents 
of  a  regular  suit,  with  its  issues  of  law  and  of  fact,  its  trial 
and  judgment ;3  and  the  persons  whose  judgment  is  sought 
to  be  vacated  must  be  made  parties  and  given  notice.^     Be- 
sides being  an  appropriate  remedy  where  some  matter  of 
discharge  has  arisen,  the  audita  querela  may  be  employed 
when  a  good  defense  to  the  action  has  accrued  since  the 
entry  of  the  judgment,  or  Avliere  such  defense,  though  exist- 
ing prior  to  the  judgment,  was  not  brought  to  the  attention 
of  the  court,  on  account  of  fraud  or  collusion  of  the  prevail- 
ing party.  5     Where  the  defendant,  during  the  pendency  of 
the  suit,   paid  the  debt,  and   the  plaintiff  afterward  took 
judgment,  it  was  held  that  this  writ  would  lie.^     It  has  also 
been  applied  for  the  purpose  of  vacating  a  judgment  against 
an  infant  who  defended  without  appointment  of  a  guardian;" 
and  a  judgment  against  a  lunatic  whose  guardian  was  not 
notified.^     In  Vermont  it  seems  to  be  employed  with  more 
frequency  than  elsewhere,  and  to  answer  as  a  specific  for 


1  Po\5ell's  Appellate  Proceedings, 
p.  377. 

aPoultney  v.  Treasixrer,  25  Verm. 
168. 


5  Bryant  r.  Johnson,  24  Maine,  304; 
Wetmore  v.  I#w,  34  Barb.  515. 

G  Lovejoy  r.  Webber,  10  Mass.  101. 
1  Starbirtl  v.  Moore,  21  Verm.  529. 


SBroolrs  v.  Hunt,  17  Johns,  484.  8  Lincoln  v.  Flint,  18  Verm.  247. 

4Gleason  u.  Peck,  12  Verm.  5G.        \ 

89 


§95 


LAW  OF  JUDGMENTS. 


[Chap.  yi. 


all  sorts  of  miscliicfs  not  otherwise  provided  against.     It 
there  has  power  to  vacate  a  judgment  rendered  after  a  suit  is 
discontinued  by  agreement,  or  by  failure  of  the  parties  to 
appear  for  trial  or  for  irregularity/  or  in  cases  where  a 
justice  of  the  peace  should  have  allowed  an  appeal,  but  re- 
fused to  do  so."     It  is  the  proper  remedy  when  two  judg- 
ments have  been  rendered  on  the  same  cause  of  action,  and 
one  of  them  is  paid.  ^     It  is  not  sustained  by  error  of  the 
court  in  a  matter  of  law  or  of  fact  ;■*  and  is  never  permissi- 
ble in  a  case  where  a  writ  of  error  is  proper  by  the  common 
law,  though  the  right  to  such  writ  has  been  taken  away  by 
statute.  ^     But  a  party  having  an  opportunity  of  making  his 
defense,  or  who  is  injured  through  his  own  neglect,  can  not 
be  relieved  by  audita  querela. «     Nor  can  a  party,  by  audita 
que7xta,  obtain  relief  from  a  judgment  rendered  against  him 
on   the   unauthorized    appearance    of    an   attorney.''      An 
audita  querela,  like  amotion  to  set  aside  a  judgment,  is  only 
available  in  behalf  of  one  who  was  prejudiced  by  the  judg- 
ment at  its  rendition.     If  the  party  does  not  seek  to  avoid 
the  judgment,  his  subsequent  alienee  will  not  be  allowed  to 
interfere  with  it.^     A  party  who  has  been  discharged  in 
insolvency,  if  he  suffer  default  to  be  taken  against  him,  is 
not  entitled  to  have  the  judgment  set  aside  for  the  purpose 
of  pleading  his  discharge. »     As  a  general  rule,  wherever 
audita  querela  would  lie  at  common  law,  relief  may  now  be 
obtained  on  motion.     But,  perhaps,  in  some  of  the  States 
and  in  England,  if  the  right  to  relief  is  questionable,  or  if 
the  facts  of  the  case  are  disputed,  the  party  moving  may  be 
compelled  to  have  recourse  to  this  writ.^°     In  a  majority  of 
the  States,  it  is  undoubtedly  superseded  by  the  more  sum- 


1  Jenny  v.  Glynn,  12  Verm.  480  ; 
Pike  V.  Hill,  15  Verm.  183. 

sEdwards  V.  Osgood,  33  Verm.  224. 

3  Browne  v.  Joy,  9  Johns.  221. 

4  Lamson  v.  Bradley, -42  Verm.  1G5 ; 
School  Dist.  V.  Rood,  27  Id.  214. 

5  Shear  v.  Flint,  17  Verm.  497. 

G  Thatcher  v.  Gammon,  12  Mass. 
270  ;  Griswold  v.  Hutland,  23  Verm. 
324. 

90 


1  Abbott  V.  Button    44  Verm.  551; 
Spaulding  v.  S\vift,  18  Verm.  214. 

8  Board    v.    Ketchum,    8     Upper 
Canada,  Q.  B.  523. 

9  Faxon  v.  Baxter,  11  Cush.  35. 

^0  Giles  V.  Nathan,  5  Taunt.  558  ; 
Lister  v.  Muudell,  1  B.  &  P.  427. 


Chap.    VT.]  AFTEK  TERM.  g §95-96 

mary  method  of  application  by  motion  upon  notice  to  the 
adverse  party.' 

g  96.  After  Term. — Every  judgment,  regularly  entered, 
must  become  final  at  the  end  of  the  term.  In  those  cases 
in  Avhich  the  court  afterward  interferes  to  vacate  or  annul 
a  judgment,  the  interference  can  only  be  justified  on  the 
ground  that  the  judgment  was  procured  in  such  a  manner 
as  to  indicate  that  it  was  not  intended  to  be  authorized  bj' 
the  court,  or,  if  authorized  by  the  court,  that  it  is  nugatory 
for  want  of  jurisdiction  over  the  parties.^  The  interests  of 
society  demand  that  there  should  be  a  termination  to  each 
controversy.  Courts  have  no  power,  after  fully  deliberating 
upon  causes,  and  ascertaining  and  settling  the  rights  of  par- 
ties, to  add  clauses  to  their  judgments  authorizing  the  losing 
party  to  apply,  at  a  subsequent  term,  to  have  the  judgment 
against  him  set  aside.  If  a  vacillating,  irresolute  judge 
were  allowed  to  thus  keep  causes  ever  within  his  power,  to 
determine  and  redetermine  them  term  after  term,  to  bandy 
his  judgments  about  from  one  party  to  the  other,  and  to 
change  his  conclusions  as  freely  and  as  capriciously  as  a 
chameleon  may  cha^nge  its  hues,  then  litigation  might  be- 
come more  intolerable  than  the  wrongs  it  is  intended  to 
redress.  Leave  granted  in  one  term  to  move  to  set  aside  a 
judgment  at  the  next  term,  is  void.^ 

The  power  of  courts  to  set  aside  judgments  after  the 
lapse  of  the  term,  is  subject  to  settled  principles,  and  the 
action  of  courts,  if  not  authorized  by  those  principles,  is  sus- 
ceptible of  review  and  reversal  in  the  appellate  courts.*  It 
must  be  confessed,  however,  that  while  those  pi-inciples 
may  be,  and  probably  are,  sufficiently  defined  in  each  State, 
they  vary  in  material  respects  in  the  difierent  States.  One 
State  withholds  this  power  altogether,  others  confine  it  to 


1  Longworth  v.  Screven,  2  Hill,  (S. 
C.)  298  ;  McDonald  v.  Falvey,  18 
Wis.  571 ;  Smoc  v.  Dade,  5  Eand. 
630  ;  Duulap  v.  Clements,  18  Ala.  778; 
Chambers  v.  Neal,  13  B.  Monr.  256  ; 
Huston  V.  Ditto,  20  Md.  305. 

2  Cook  V.  Wood,  24  111.  205;  Ashby 
V.   Glascow,    7   Mo.   320;  State   Sav. 


Inst.  V.  Nelson,  49  111.  171;  Merle  v. 
Andrews,  4  Tex.  200. 

3  Hill  V.  City  of  Saint  Louis,  20  Mo. 
584. 

4  Huntington  v.  Finch,  3  Ohio,  S. 
445;  Henderson  v.  Gibson,  10  Md. 
234. 

91 


§ ^90-97 


LAW   OF  JUDGMENTS. 


[Cliap.    VI. 


judgments  rendered  contrary  to  the  practice,  or  without  the 
authority  of  the  court,  while  in  some  it  is  applied  within 
very  broad  limits,  and  seems  to  be  kept,  like  reserved 
troops  at  a  battle,  for  desperate  emergencies  not  otherwise 
to  be  overcome.^ 

§  97.  For  Irregularity. — "Irregular  and  improper  con- 
duct in  procuring  judgment  to  be  entered,  is  a  well  settled 
ground  for  vacating  it.  This  has  become  one  of  the  settled 
remedies  where  the  impropriety  or  irregularity  has  not  been 
induced  by  the  fault  or  negligence  of  the  judgment  debtor.'" 
A  judgment  is  said  to  be  irregular  whenever  it  is  not  en- 
tered in  accordance  with  the  practice  and  course  of  proceed- 
in  f^  where  it  was  rendered.  ^  When  the  writ  was  not  returned 
until  two  months  after  the  return  day,  and  the  judgment  was 
entered  as  of  the  same  day,  it  was  set  aside  as  irregular, 
on  the  ground  that,  if  entered  befoi^e  the  return,  it  was  un- 
authorized; and,  if  entered  subsequent  to  its  date,  it  was  a 
false  record.  *  Judgments  prematurely  entered  by  default, « 
and  those  entered  after  the  death  of  a  party*'  are  irregular, 
and  will  be  stricken  out  on  motion.  Taking  judgment  upon 
a  warrant  of  attorney  without  filing  a  copy  is,  in  Ohio,  such 
irregularity  as  authorizes  the  vacation  of  the  judgment  after 
the  term.''  Where  the  duty  of  plaintiff  required  him  to 
give  notice  of  the  taxing  of  costs,  and  he  failed  to  do  so, 


1  Breclen  v.  Gilliland,  C.7  Pa.  S.  36, 
■where  the  court,  says:  "  In  the  nature 
of  the  case,  there  is  not,  and  ought 
not  to  be,  any  limitation  of  time  to  the 
power  of  a  court  to  open  a  judgment 
by  default,  for  want  of  appearance." 
So  in  Massachusetts,  where  a  wrong 
verdict  had  been  reported  to  the  court 
through  mistake,  and  a  judgment  was 
entered  thereon,  the  com-t  said:  "  We 
think  it  clear  that  the  court  had  power 
at  a  subsec|ucnt  term,  in  the  exercise 
of  a  judicial  discretion,  on  satisfactory 
proof  that  an  erroneous  entry  had 
been  made  on  the  docket  through 
mistake,  to  order  the  case  to  be 
brought  forward  for  the  purpose  of 
vacating  the  previous  erroneous  order, 

92 


and  making  such  disposition  of  the 
case  as  the  rights  of  the  parties  might 
require."  Capen  v.  Inhabitants  of 
Stoughton,  16  Gray,  3C5;  see  also 
Stickney  v.  Davis,  17  Pick.  169. 

-Huntington  V.  Finch  &  Co.,  3  Ohio 
S.  445;  Downing  r.  Still,  43  Mo.  309; 
Doau  V.  Holly,  27  Mo.  256;  Harkness 
U.Austin,  36  Mo.  47. 

^Dick  V.  McLaurin,  63  N.  C.  185 ; 
Davis  V.  Shaver,  1  Phill.  N.  C.  18. 

•'Graff  V.  M.  &  M.  Trans.  Co.,  18 
Md.  364. 

5  Mailhouse  v.  Inlocs,  18  Md.  329. 

(iJIolmes  I'.  Honie,  8  How.  P.  384. 

'Knox  Co.  Bank  v.  Doty,  9  Ohio 
S.  505. 


Chap.  YI.]  NULLITIES.  ^^07-98 

the  jnclgment  was  set  aside,  and  he  was  compelled  to  give  a 
notice  at  his  own  expense.' 

g  98.  Nullities. — A  judgment  which  is  a  nullity  on  ac- 
count of  being  rendered  against  a  corporation  that  does  not 
exist,  will  be  vacated  by  the  court  which  entered  it."  And, 
as  a  general  rule,  all  void  judgments  will  be  so  treated.-^  In 
a  case  in  South  Carolina,  the  court  asked  itself  this  perti- 
nent question:  "  Should  the  court  whose  process  is  abused 
by  an  attempt  to  enforce  a  void  judgment,  interfere  for  its 
own  dignity  and  for  tlie  protection  of  its  officers  to  arrest 
further  action  ?"  and  answered  itself  by  saying:  "Certainly, 
on  proper  application."^  In  New  York,  judgment  was  va- 
cated on  motion,  on  ground  that  the  summons  was  served 
by  publication,  and  the  record  did  not,  on  its  own  face, 
show  sufficient  facts  to  confer  jurisdiction  upon  the  court.* 
In  most  of  the  States,  a  judgment  will  be  set  aside,  though 
procured  according  to  the  ordinary  forms  of  practice,  upon 
showing  a  want  of  jurisdiction  over  the  person  of  the  judg- 
ment debtor.''  This  has  been  done  in  cases  of  appearance 
made  by  unauthorized  attorneys,  upon  showing  by  affidavits 
the  want  of  authority  in  those  persons,  and  that  the  defend- 
ant did  not  know  of  their  action  in  his  name  when  it  oc- 
curred. The  courts  have  acted  in  these  cases  without  in- 
quiring whether  the  attorneys  were  solvent  or  insolvent  f 
but,  in  this  respect,  they  probably  disregarded  the  current 
of  the  authorities.  A  judgment,  entered  while  an  order  of 
reference  is  unexecuted,  is  an  irregularity,  and  will,  there- 
fore, be  vacated  at  any  time.^  And  a  judgment  against  an 
infant  who  did  not  appear  by  guardian,  stands  on  the  same 
footing.^  Where  the  court  ordered  a  case  to  stand  over 
and  to  be  continued  for  argument,  and  the  clerk  by  mistake 
entered  judgment  on  the  verdict,  and  issued  execution,  the 

•iHallett  c.  Eighters,   13  How.  P. 


^Fentou  r.  Garlick,  G  Johus.  2SS. 

^City  of  Oluey  v.  Boyd,  50  111.  453. 

^aFormauv.  Scott,  10  Kans.  — ;  12 
Am.  L.  R.  GO;  Hervey  v.  Edmunds,  68 
N.  C.  213 ;  Winslow  v.  Anderson,  3 
Dcv.  &  Bat.  9;  Foreman  v.  Carter,  9 
Kans.  C78. 

"•Mills  &  Co.  V.  Dickson,  6  Eich. 


13. 

sShuford  V.  Cain,  1  Abb.  U.  S.  302. 

6Yates  V.  Horanson,  7  Eobt.  12; 
McKelway  r.  Jones,  2  Ilarrison,  N.  J. 
315. 

■i  Stacker  v.  Cooper  Co.  Court,  25 
Mo.  401. 


487.  I      SKoaton  v.  Banks,  10  Ircd.  381. 

93 


§^93-100  LAW  OF  JUDGMENTS.  [Chap.  VI. 

judgment  was  set  aside  and  tlio  execution  quashed  at  the 
next  term,  on  motion.' 

g  99.  For  Fraud. — The  maxim  * '  that  fraud  vitiates  every- 
thing" is  applicable  to  judgments.  Upon  proof  of  fraud  or 
collusion  in  their  procurement  they  may  be  vacated  at 
any  time.^  It  Avas  held  in  Pennsylvania,  that  the  Court  of 
Common  Pleas  had  the  power  to  vacate  a  decree  of  divorce, 
when  it  was  obtained  at  a  previous  term  by  fraud  on  the 
court,  although  a  marriage  had  been  subsequently  con- 
tracted on  the  faith  of  the  parties  in  the  decree,  and  issue 
had  been  born.^ 

§  100.  Vacating  Decrees. — In  relation  to  decrees  there 
seems  to  be  no  doubt  that  the  power  of  the  court  to  dis- 
charge the  enrollment  and  open.the  decree,  never  terminated 
unless  there  had  been  a  regular  trial  on  the  merits.  The 
general  rule  "that  a  decree  once  enrolled  cannot  be  opened 
except  by  bill  of  review,  or  by  an  original  bill  for  fraud,  is 
subject  to  well  founded  exceptions,  arising  in  cases  not 
heard  upon  the  merits,  and  in  which  it  is  alleged  that  the 
decree  was  entered  by  mistake  or  surprise,  or  under  such 
circumstances  as  shall  satisfy  the  court,  in  the  exercise  of 
a  sound  discretion,  that  the  decree  ought  to  be  set  aside. 
The  decree  in  such  cases  being  by  default,  the  cause  of  the 
default  can  never  be  the  subject  of  inquiry  until  the  decree 
has  been  pronounced,  and  generally  not  until  after  the  term 
has  passed.  "Without  the  exercise  of  this  power  in  the 
court  to  vacate  the  enrollment,  a  party  against  whom  a  de- 
cree had  been  enrolled  b}^  mistake  or  surprise,  and  without 
any  laches  on  his  part,  would  be  without  redress.  A  bill 
of  review  would  be  of  no  avail,  because  his  claim  to  relief 
is  not  based  on  error  apparent  on  the  face  of  the  decree. 


1  U.  S.  V.  Knight,  1  Cranch.  C.  C. 
84. 

-  Cannau  v.  Rcynokls,  5  El.  &  Bl. 
301;  Phillipson  r.  Etui  of  E^Temont, 
G  Ad.  &  El.  N.  S.  587. 

sAllen  V.  McClellaD,  12  Penn,  S. 
328.      The  courts  in  ^Massachusetts 


was  vacated  iipon  petition  addressed 
the  court,  showing  that  a  decree  had 
been  obtained  at  a  former  term  against 
petitioner  on  false  testimony,  on  a 
libel  of  which  she  had  no  notice,  and 
of  which  actual  knowledge  was  kept 
from  her  by  the  other  party,  and  that 


also  exercise  the  power  of  vacating'  the  jurisdiction  of  the  court  was 
judgments  after  the  lapse  of  the  term,  founded  on  a  false  allegation  of  <lom- 
lu  a  recent  case  a  decree  of  divorce  icil.     Edsoa  v.  Edson,  108  Mass.  590. 

94 


Chap.    VI. J  VACATING  DECREES.  glOO 

nor  on  account  of  newlj-discovercd  evidence;  and,  unable 
to  cliarge  fraud  in  obtaining  the  decree,  he  would  be  unable 
to  reverse  it  on  that  ground.  Accordingly,  it  is  laid  down 
by  the  most  eminent  elementary  writers,  and  fully  sustained 
by  the  adjudged  cases,  that  when  a  case  has  not  been  heard 
on  the  merits,  the  court  will,  good  cause  being  shown,  ex- 
ercise a  discretionary  power  of  vacating  an  enrollment,  and 
giving  the  party  an  opportunity  of  having  his  case  dis- 
cussed." The  fact  that  the  merits  of  the  case  were  never 
before  the  court,  seems  to  be  the  controlling  one  in  all  ap- 
plications for  the  exercise  of  this  discretionary  power. 
Therefore,  where  the  decree  is  perfectly  regular  so  far  as 
regards  the  appearance  of  the  parties,  and  is  in  conformity 
with  the  general  practice,  it  may  be  vacated  at  the  discre- 
tion of  the  court,  upon  a  showing  of  mistake,  accident  or 
surprise,  or  of  negligence  of  the  solicitor,  by  which  the 
decision  on  the  merits  was  prevented;^  or  that  the  merits 
of  the  case  were  not  presented  to  the  court,  on  account  of 
the  guardian  ad  litem  appointed  for  an  infant,  not  sufSciently 
understanding  the  matters  constituting  his  defense. "  Prin- 
ciples about  as  ample  and  liberal  as  those  recognized  at 
equity  upon  application  to  vacate  decrees,  seem  to  be  ap- 
plied to  judgments  in  the  courts  of  Maryland  and  Michigan. 
The  courts  of  the  former  State  vacate  a  judgment  upon 
clear  proof  of  fraud,  surprise  or  irregularity,^  while  those 
of  the  latter  State  relieve,  upon  motion,  irrespective  of  the 
question  whether  the  term  has  passed,  all  who  have  suffered 
from  inability  to  make  their  defense^  And,  in  England, 
little  if  any  more  stringency  is  applied  to  applications  made 
after,  than  to  those  made  during  the  term.  Ifi  Cannan  v. 
Bcynolds,"'  the  court  set  aside  a  judgment  by  default  on 
application  of  plaintiff,  on  the  ground  of  mistake  on  his 
part  in  including  demiinds  in  the  judgment  which  were  due 

12   Dane  Ch.   1230;  2   Madd.    Ch.i  Cranwell,    1  Dick.   Gl;    Beekman   r. 
466;  Herbert  I'.  Eowles,  30  Md.  271;  Peck,  1  Johns.   Ch.  415;  Bennett  v. 


Kemp  V.  Squires,  1  Ves.  Sr.  205; 
Millspangh  v.  McBride,  7  Paige,  509; 
Erwiu  V.  Vint,  G  Munf.  267;  Carter  r. 
Torrance,  11  Geo.  654;  Hargrave  v. 
Ilargrave,  9  E.  L.  &  E.  14;  Benson  r. 
Vemou,  3  Bro.  C.  P.  C26;  liobson  v.\      65  El.  &  Bl.  301. 

95 


Eankins,  2  Id.  Ch.  205. 

2  Curtis  V.  Ballagh,  4  Edw.  Ch.  G35. 

3  Hall  V.  Holmes,  30  Md.  558. 
4Loree  v.   Reeves,    2   Mich.    13J; 

Hurlburt  v.  Eeed,  5  Mich    3U. 


^J 100-102 


LAW   OF  JUDGMENTS. 


[Chap.  VI. 


from  others  than  the  defendants,  and  in  excluding  equal 
amounts  due  from  defendants,  whereby,  if  the  judgment 
was  not  set  aside,  the  phiintiffs  would  be  prejudiced. 
The  court  thought  it  had  power  to  set  aside  a  judgment,  at 
any  time,  in  its  discretion;  and  stated  that  it  was  in  the 
habit  of  doing  so  every  day,  even  after  execution  executed, 
and  without  inquiring  Avhether  it  was  in  term  or  not.  In 
Illinois,  a  judgment  confessed  by  attorney,  was  vacated  on 
the  ground  that  usury  entered  into  the  consideration  upon 
which  the  confession  was  made.  This  action  was  said  to 
be  warranted  by  the  practice  in  England,  though  not  by 
that  of  some  of  the  United  States.^ 


g  101.  Error  as  a  Ground  for. — But  neither  a  final  judg- 
ment nor  a  final  decree,  pronounced  upon  a  hearing  on  the 
merits,  can  be  sot  aside  after  the  term,  upon  motion,  for 
any  errors  into  which  the  court  may  have  fallen.  The  law 
does  not  permit  any  judicial  tribunal  to  exercise  a  revisory 
power  over  its  own  adjudications,  after  they  have,  in  con- 
templation of  the  law,  passed  out  of  the  "breasts  of  the 
judges."^  That  a  judgment  was  rendered  upon  default, 
upon  considering  evidence  offered  by  plaintiff,  for  a  sum 
much  larger  than  that  evidence  warranted,  is  not  a  ground 
for  vacating  the  judgment.  The  matter  complained  of  is 
attributable  to  an  error  of  the  court,,  which  might  have  hap- 
pened if  the  defendant  had  been  present  at  the  trial.  ^ 
Neither  is  an  error  or  misapprehension  of  the  parties,  nor  of 
their  counsel,  any  justification  for  vacating  the  judgment, 
altliough  the  counsel  consented  to  it  because  deceived  by 
fraudulent  misrepresentations  of  third  parties,'  or  failed  to 
attend  the  trial  on  account  of  a  misapprehension  as  to  the 
time  of  holding  court.  ^ 

^  102.  Merits  and  Want  of  Laches. — The  most  worthy 
object  attained  by  the  granting  of  motions  to  vacate  judg- 


1  Fleming  v.  Jencks,  22  111.  475. 

sCharman  v.  Charman,  IG  Ves.  Jr. 
115;  Assignees  v.  Dorsey,  2  Wash.  C. 
a.  433;  Bank  of  U.  S.  v.  Moss,  (". 
How.  U.  S.  31;  Peako  r.  EedJ.  14 
Mo.  79. 

96 


3  Green  v.  Hamilton,  IG  McL  317. 
iMurpby   r.  Merritt,  G3  N.  C.  502. 
5  Harbor   v.  Pacific  II.  R.  Co.,  32 
Mo.  423. 


Chap.  VI.]  MERITS  AND   WANT   OF  LACHES.  §102 

mcnts,  is  that  of  allowing  a  full  investigation  of  the  matters 
in  controversy,  in  order  that  a  disposition  of  the  case, 
according  to  the  merits  may  bo  made.  Whenever  that 
object  does  not  appear  to  be  the  one  sought,  an  application 
based  on  mere  irregularity  of  proceeding  will  be  treated  with 
no  favor.*  The  rules  will  be  strictly  applied,  and  any 
laches  shown  against  the  moving  party  will  prove  fatal  to  his 
desires.'''  But  what  delay  necessarily  amounts  to  laches 
is  uncertain.  In  an  early  case  in  New  York,  eight  days' 
notice  of  trial  being  given,  when  the  defendant  was  entitled 
to  fourteen  days'  notice,  he  treated  it  as  void,  and  judgment 
was  given  against  him.  A  subsequent  motion,  based  on 
the  irregularity,  made  after  the  intervention  of  a  full  term, 
was  considered  too  late.^  In  the  same  State,  a  third  of  a 
century  later,  an  application  based  on  an  irregularity,  in 
giving  too  short  a  notice  of  an  inquisition  on  a  writ  of  in- 
quiry, made  after  lapse  of  two  special  terms,  wasTefused, 
^ecause,  "  as  this  was  an  attempt  to  deprive  the  plaintiff  of 
his  judgment,  on  the  ground  of  a  mere  irregularity,  the 
defendant  would  be  held  to  the  strictest  rules  of  proceeding, 
and  having  been  guilty  of  laches  in  making  his  motion,  he 
was  not  entitled  to  be  heard. "^  This  decision  has  been 
indorsed  in  Wisconsin,  by  holding  that  a  short  notice,  being 
sufficient  to  put  a  party  upon  inquiry,  he  must  ascertain 
whether  his  adversary  proceeds  to  judgment  upon  it  ;  that 
a  motion  to  set  aside  such  judgment,  there  being  no  pretense 
of  merits,  must  be  made  at  the  same  term,  unless  he  can 
show  some  good  cause  for  his  delay;  and  that  where  defend- 
ant waited  more  than  two  months,  and  until  the  expense  of 
advertising  real  estate  for  sale  had  been  incurred,  he  waived 
the  irregularity.*  The  defendant  must  not,  according  to 
some  of  the  authorities,  take  any  step  in  the  case  after  the 
irregularity  occurs,  or  it  will  be  deemed  a  waiver.     Thus, 


^  But  in  Missouri,  if  a  judgment 
be  ' '  irregularly  obtained  against  the 
provisions  of  a  statute,  or  the  rules  of 
a  court,  a  party  is  entitled  to  have  it 
set  aside  withoutshowing  any  merits." 
Doan  u.  Holly,  27  Mo.  256;  see  also 
Hughes  V.  Wood,  &  Duer,  603  note. 


1^  Kerr  v.  Bowie,  3  Upper  Canada, 
L.  J.  150;  Cagger  V.  Gardiner,  1  Hom". 
P. 142. 

2  McEvers  v.  Markler,  1  John.  Ca. 
248. 

sNichols  V.  Nichols,  10  Wend.  560. 

*  Etna  Life  Insurance  Co.  v.  Mc- 
Cormack,  20  Wis.  2G5. 

(7)  97 


g  §102-104  LAW  OP  JUDGMENTS.  [Cliai3.  VI. 

where  an  appeal  was  taken,  because  no  notice  of  the  motion 
for  judgment  was  served,  and  the  appellate  court  declined 
to  interfere,  on  the  ground  that  the  appropriate  remedy  was 
by  motion  to  yafeate  the  judgment;  and  the  defendant  then 
applied  in  the  court  where  judgment  was  rendered,  to  have 
it  set  aside,  the  taking  of  the  appeal  was  deemed  to  be  such 
a  proceeding  as  precluded  him  from  taking  advantage  of 
the  irregularity.^  It  is  said  in  England  that  the  true  rule 
is,  that  if  there  be  an  irregularity,  the  party  suffering  by  it 
is  noi  bound  to  have  it  set  aside  in  any  specific  time;  that 
he  may  reasonably  presume  that  his  adversary,  discovering 
the  error,  will  abandon  the  defective  proceeding.  But,  if 
the  adversary  take  one  step  more,  showing  that  he  has  not 
abandoned  his  process,  then  the  movement  to  have  the 
irregularity  set  aside  must  be  commenced. "  An  infant  hav- 
ing confessed  judgment  by  attorney,  and  permitted  it  to 
stand  until  six  years  after  coming  of  age,  the  court  held 
that  his  application  to  vacate  it  came  too  late.  ^ 

§  103.  Notice  of  Application. — At  the  close  of  the  term 
the  parties  are  dismissed  sine  die,  and  can  no  longer  be  re- 
garded as  being  in  court.  Proceedings  taken  after  that 
time  to  set  aside  a  judgment,  must  therefore  be  upon  notice 
to  all  the  parties  affected,*  and  the  order  of  a  court  acting 
in  the  absence  of  such  notice,  will  be  reversed  upon 
appeal.^ 

§  104.  Conditional  Vacation. — Where  the  Circuit  Court 
made  an  order  setting  aside  a  judgment  upon  payment  of  the 
costs  which  had  accrued,  the  neglect  of  plaintiff's  counsel 
to  insist  upon  their  payment,  impliedly  waived  the  condi- 
tion upon  which  the  judgment  was  to  be  vacated,  and  he 
could  not,  therefore,  proceed  upon  the  judgment  as  still  in 
force.  '^  In  Alabama,  an  order  that  a  cause  stand  dismissed, 
unless  plaintiff,  within  one  hundred  and  twenty  days,  answer 
certain  interrogatories,  is  not  considered  a  final  order.     It 


1  Jcnldns  v.  Esterly,  24  Wis.  340. 
2Fletcher  v.  Wells,  G  Taunt.  191. 
sKcnip  V.  Cook,  18  Md.  130. 
4Lanc  V.   Wheless,   4G  Miss.  GGG; 
Coleman  v.  McAnulty,  IG  Mo.   173; 

98 


Tlcttriclc  D.  Wilson,  12  Ohio  S.  136; 
Nuckolls  V.  Irwin,  2  Neb.  GO. 

sVallejo  V.  Green,  IG  Cal.  IGO. 

6  Ransom  v.  City  of  New  York,  20 
How.  581. 


Chap.    VI.]  VACATING  A  JUDGMENT.  §gl04-1046 

was  said  that  the  matter  still  remained  in  the  control  of  the 
court;  that  it  was  competent  for  the  court  at  a  subsequent 
term  to  modifj-  or  vacate  the  order;  that  the  order  could  not 
become  effective  until  the  happening  of  the  contingency  was 
judicially  ascertained  at  the  next  term.'  The  courts  of  the 
same  State  hold  that  an  order  setting  aside  a  judgment  upon 
payment  of  costs,  is  a  conditional  order,  dependent  upon 
the  payment  being  made,  and  that  it  may  be  set  aside  at 
any  subsequent  term  prior  to  the  compliance  with  its  con- 
dition.'    In  this  opinion  they  are  probably  in  error.  ^ 

§  104''.  The  Entry  of  a  Second  Judgment  is  not  a  va- 
cation of  the  first.  In  a  case  arising  in  Nebraska,  the  rec- 
ord showed  the  entry  of  two  judgments  in  the  same  action 
at  different  dates.  Speaking  of  this  state  of  facts,  the  court 
said:  "But  as  there  can  be  but  one  final  judgment  in  a 
cause,  we  have  the  question,  which  is  the  judgment  in  the 
case  ?  That  seems  to  be  not  a  very  difficult  question. 
When  a  judgment  is  once  entered  of  record,  it  must  stand 
as  the  judgment  until  it  is  vacated,  modified  or  disposed  of 
by  some  means  provided  by  law :  entering  additional  judg- 
ment entries  is  not  one  of  them.  A  case  brought  regularly 
into  court  is  presumed  to  be  attended  at  regular  terms  of 
court  by  the  attorneys  having  it  in  charge  ;  and  all  proceed- 
ings of  the  court  in  reference  to  them,  in  the  absence  of 
fraud,  will  be  binding  on  the  parties,  whether  present  or 
not.  But,  when  judgment  is  entered,  they  may  cease  their 
attention.  The  further  proceedings  in  the  case,  by  petition 
to  vacate  or  modify  the  judgment,  or  on  error  to  this  court, 
must  be,  on  proper  notice,  provided  by  statute."* 

g  104'\     The  Effect  of  an  Order  Vacating  a  Judgment 

may  be  considered :  1st,  with  reference  to  the  persons  against 
whom  the  order  is  sought  to  be  asserted;  and  2d,  with  refer- 
ence to  the  causes  on  account  of  which  the  order  was  en- 
tered. So  far  as  third  persons  are  concerned,  it  seems 
clear  that  their  acts  done  b}'  authority  of  a  judgment  which 
was  not  void,  but  voidable  only,  may  be  justified  under  the 


1  Ex  park  McLendon,  33  Ala.  27G. 
'i  Willis  V.  Bauk  of  Mobile,  19  Ala. 
Ml. 


3Dana  v.  Gill,  5  J.  J.  M.  242;  John- 
sour.  Taylor,  3  S.  &  M.  92. 
4  Nuckolls  V.  IrwiD,  2  Neb,  CQ, 

CO 


§1046  LAW  OF  JUDGMENTS.  [Chap.  VI. 

judgment,  notwithstanding  its  subsequent  vacation.  With 
the  parties  to  the  suit  this  rule  is  not  alwaj's  applicable; 
and  -whether  it  is  applicable  or  not,  depends  on  the  causes 
producing  the  vacation.  The  judgment  may  have  been 
regularly  and  properly  entered,  and  its  subsequent  vacation 
may  have  been  in  the  exercise  of  mercy  toward  the  defend- 
ant. In  such  case,  as  the  plaintiff  has  been  guilty  of  no 
neglect  or  misconduct,  he  may,  no  doubt,  justify  all  his  acts 
done  tinder  the  judgment,  before  it  was  set  aside.  But 
where  the  order  of  vacation  is  made  because  of  some  fault 
or  misconduct  of  the  plaintiff  in  procuring  the  original  judg- 
ment, a  different  rule  maybe  invoked.  "If  the  judgment 
or  execution  has  been  set  aside  for  irregularity,  the  party 
can  not  justify  under  it,  for  that  is  a  matter  in  the  privity 
of  himself  and  his  attorney ;  and  if  the  sheriff  or  officer,  in 
such  case,  join  in  the  same  plea  with  the  party,  he  forfeits 
the  benefit  of  his  defense.  The  sheriff  or  officer,  however, 
may  justify  under  an  irregular  judgment,  as  well  as  an  erro- 
neous one,  for  they  are  not  privy  to  the  irregularity ;  and 
so  as  the  writ  be  not  void,  it  is  a  good  justification,  how- 
ever irregular,  and  the  purchaser  will  gain  a  title  under  the 
sheriff."'  The  case  of  a  judgment  set  aside  for  irregularity 
differs  materially  from  that  of  one  reversed  upon  appeal. 
In  the  latter  case,  the  error  for  which  the  judgment  is  ulti- 
mately avoided  is  imputed  to  the  court,  and  the  parties  are 
not  left  without  protection  for  the  acts -which  they  have 
done,  based  upon  the  judgment  and  upon  their  confidence 
in  the  correctness  of  the  decision  of  the  court.  But  a  judg- 
metit  obtained  irregularly,  and  against  law,  or  the  practice 
of  the  court,  is  tainted  with  vices  liable  to  result  in  its  de- 
struction, and  for  which  the  party  practicing  the  irregular- 
ity is  alone  responsible.  When,  on  account  of  these  vices, 
the  judgment  is  vacated,  the  party  guilty  of  the  irregularity 
seems  to  be  as  completely  without  any  means  of  justifica- 
tion as  though  no  judgment  had  ever  been  entered." 


iTidd's  Practice,  1,032. 
^Young  V.    Bucber,    31   Mo.    139; 
Simpson  i'.  Hornbeck,   3  Lans.  54; 

100 


Barker  v.  Brabam,  3  Wlls.  368;  Cole- 
man t).  McAnulty,  IG  Mo.  176;  Turner 
V.  Felgate,  1  Levinz,  95. 


Cliap.  VTI.]  suiiOLvnY  of  statutes.  gl05 


CHAPTEE  YII. 

OFTACATDTG  JUDGMENTS  UNDER  STATUTES,  ON  ACCOUNT  OF 
MISTAIvE,  INADVERTENCE,  SURPRISE  OR  EXCUS^iBLE  NEG- 
LECT. 

§  105.  Sirmmary  of  Statutes. 

S  lOG.  Discretion  is  subject  to  review. 

S  107.  Party  recovering,  may  move  to  vacate. 

§  108.  Affidavit  of  Merits. 

§  109.  ]May  contradict  the  Record  ;  but  not  the  Affidavit  of  Merits. 

§  110.  New  Iilution  may  be  regarded  as  ( Joutinuatiou  of  an  Old  One. 

§  111.  Lenience  of  the  New  York  Courts. 

§  112.  Neglect  of  Attorney. 

.    §  113.  Mistake. 

§  11-1.  Excusable  Neglect. 

§  115.  Inexcusable  Neglect. 

§  105.     The  autlioritj  of   the  courts  over  regular  judg- 
ments, has,  in  several  of  the  States,  been  extended  beyond 
the  term  in  certain  cases  specified  by  statutes.  ,  The  most 
liberal  of  these  statutes  authorize  "the  court  at  its   dis- 
cretion, and  on  such  terms  as  may  be  just,  at  any  time  with- 
in one  year  after  notice  thereof,  to  relieve  a  party  from  a 
judgment  taken  against  him  through  his  mistake,  inadvert- 
ence, surprise  or  excusable  neglect.'"     In  other  States,  this 
provision  has  been  substantially   copied,    except  that  the 
period  in  which  an  aggrieved  party  is  authorized  to  apply 
for  relief,  is  computed  from  the  rendition  of  the  judgment, 
instead  of  "from  notice  thereof."'     In  Ohio  and  Iowa,  the 
judgment  may.   in  a  specified  time,  though  the  term  has 
passed,  be  relieved  from  "for  unavoidable  casualty  or  mis- 
fortune preventing  the  party  from  defending  or  prosecuting," 
or  for  "fraud  practiced  by  the  successful  party  iu  obtaining 
the  judgment."^  The  statutes  of  these  States  further  provide 
that  the  proceeding  shall  be  by  petition  and  summons,  and 
that  the  judgment  shall  not  be  vacated  unless  it  be  first  ad- 


3§  UO'J  Iowa,    Revision   of    18G0. 
§§  53i  to  541  Civil  Code,  Ohio. 


1  Rev.  St.  of  Wis.  Chapt.  125,  ^  38; 
Code  of  New  York,  $  174. 

2  c,  C.  P.  of  Cal.  ^  473;  Cal.  Pr. 
Act,  68;  C.  C.  P.  of  Ind.  §  99;  of  N. 
C.  §  133. 

101 


§§105-106  LAW  or  JUDGMENTS.  [Chap.  YII. 

judged  that  tliLro  is  a  valid  defense  or  a  valid  cause  of  ac- 
tion. In  Vermont,  the  county  court  may  set  aside  a  judg- 
ment of  a  justice  of  the  peace,  recovered  against  a  party 
who  was  prevented  from  appearing,  by  reason  of  "fraud, 
accident  or  mistake."'  The  statutes  referred  to  in  this  sec- 
tion, do  not  supersede  the  necessity  for  moving  for  a  new 
trial  in  cases  where  a  trial  has  been  had,  at  which  the  par- 
ties seeking  to  have  the  judgment  vacated,  were  ^Droperly 
represented.  -  If  they  were  represented  at  the  trial,  they 
can  only  obtain  relief  by  an  application  made  in  conformity 
with  the  rules  of  procedure,  provided  by  law  in  reference  to 
new  trials.  But  if  they  Avere  not  at  the  trial,  or  were  not 
represented  there,  on  account  of  some  mistake  or  excusable 
neglect,  then  their  remedy  is  not  by  application  for  a  new 
trial,  but  by  an  application  addressed  to  the  discretion  of 
the  court,  and  made  under  the  statute  authorizing  relief  to 
be  granted  from  judgments  rendered  against  a  party  through 
"his  mistake,  inadvertence  or  excusable  neglect."^  These 
statutes  niust  be  regarded  as  limiting  the  cases  in  which 
relief  can  be  granted  to  applications  made  within  the  time, 
and  for  some  of  the  causes  specified  in  the  statute.* 

glOG.  Discretion  is  Subject  to  Review. — Under  the  uni- 
form construction  given  to  these  statutes,  the  signification 
of  the  words  "at  its  discretion"  has  been  materially  limited. 
The  "  discretion"  here  referred  to  is  not  "  the  power  of  act- 
ing without  other  control  than  one's  own  judgment."  "It 
is  not  a  mental  discretion  to  be  exercised  ex  gratia,  but  is  a 
legal  discretion  to  be  exercised  in  conformity  to  law."^  If 
the  power  of  the  court  were  discretionary,  in  the  ordinary 
sense  of  that  term,  the  practice  would  necessarily  be  as 
varied  as  are  the  different  temperaments  of  jadges;  and, 
even  in  proceedings  before  the  same  judge,  would  as  prob- 
ably be  shaped  by  the  personal  pleasures  or  annoyances  of 
the  several  occasions  in  which  he  happened  to  act,  as  by 
those  unvarying  rules  which,  whenever  applied  to'  identical 
circumstances,  produce  identical  results.     But  the  power 


1  Rev.   Stat,  of  Verm.  Ed.  of  18C3 
p.  334. 

2  McCnllocli  V.  Doak,  GG  N.  C.  2G7. 

3  McKinley  v.  Tuttle,  U  Cal.  239. 

102 


4  Gerrish  v.  Johnson,  5  Minn.  23. 

5  Bailey  v.    Taaffc,    29    Cal.   422  ; 
Jolinson  V.  Eldrcd,  13  Wis.  482. 


Chap.  VII.]  AFFIDAVIT   OF   MERITS.  gpOG-lOS 

of  the  court  is  nevertheless  to  be  liberally  exercised.'  These 
statutes  are  remedial  in  their  character,  intended  to  furnish 
a  simple,  speedy,  and  efficient  means  of  relief  in  a  most 
•worthy  class  of  cases.  An  order  of  the  court  vacating  a 
judgment  entered  by  default,  will  not  be  disturbed  by  the 
appellate  court,  except  in  case  "of  gross  abuse  of  the  dis- 
cretion of  the  court."  "  Both  orders  granting  and  orders 
denying  applications  under  these  statutes,  are  subject  to 
review  upon  appeal.  ^ 

§107.  Party  Recovering  may  Move  to  Vacate. — The 
literal  meaning  of  the  words  employed  in  these  statutes 
has  been  further  modified  by  judicial  construction.  The 
statute  says  the  court  may  relieve  a  party  from  a  judgment 
"  taken  against  him."  But  a  party  in  whose  favor  a  judg- 
ment has  been  l^endered  has  been  decided  to  be  within  the 
meaning,  but  not  within  the  words,  of  the  statute ;  on  the 
ground  that  the  law,  being  of  a  remedial  chaf'acter,  must  be 
liberally  construed.*  Such  a  party,  however,  though  nom- 
inally prevailing,  may  lose  part  of  his  demand.  To  that 
extent  he  would  be  entitled  to  an  appeal ;  and  it  is  no  far- 
fetched construction  to  say  that  he  is,  therefore,  within  the 
words  as  well  as  within  the  meaning  of  the  statute. 

§  108.  Affidavit  of  Merits. — These  statutes  are  to  be 
employed  only  in  furtherance  of  justice;  and  never  for  the 
purpose  of  enabling  a  party  to  raise  some  technical  objec- 
tion. Even  where  the  statute  does  not  so  expressly  direct, 
no  judgment  will  be  opened  unless  it  is  shown  to  be  unjust. 
"Every  consideration  of  expediency  and  justice  is  opposed 
to  the  opening  up  cases  in  which  judgment  by  default  has 
been  entered,  unless  it  be  made  to  appear  prima  facie  that 
the  judgment,  as  it  stands,  is  unjust."^  In  all  cases  an 
affidavit  of  merits  must  be  made  and  filed;  and  in  Indiana, 


1  Eoland  r.  Kreyenliagen,  18  Cal. 
455  ;  Masou  v.  McNamara,  57  111. 
274. 

2  Howe  V.  Independence  Co.,  29 
Cal.  72  ;  Merritt  v.  Putnam,  7  Minn. 
493. 

3  Haight  V.  Green,  19  Cal.  113;  Mul- 
holland   v.  Ileyneman,    19   Cal.  G05  ;   Canada,  Pr.  Eep.  343 

103 


29  Cal.  422  ;  Hill  v.  Cramp,  24  Ind. 
291. 

4 Montgomery  v.  Ellis,  6  How.  P. 
326. 

sParrott  v.  Den,  34  Cal.  79. 
Thatcher  v.  Haiin,  12  Iowa,  303; 
Wooster  Coal  Co.  v.  Nelson,  4  Upper 


P08 


LAW  OF  JUDGMENTS. 


[Chap.  VII. 


Texas  and  Missouri,  must  set  fortli  matters  constituting  a 
good  and  meritorious  defense.^  Where  the  aflidavit  to 
open  a  default  stated  that,  after  a  careful  examination,  the 
attorneys  are  of  the  opinion  that  they  have  a  good  legal 
defense  to  the  complaint,  the  judgment  was  not  set  aside; 
because  the  matter  shown  ajipeared  to  be  of  a  technical 
character;-  and  for  aught  that  appeared  to  the  contrary,  the 
judgment  might  be  perfectly  consistent  with  fair  dealing. 
A  verified  answer  has  been  held  not  to  obviate  the  necessity 
for  an  afiidavit  of  merits.  The  reasoning  upon  which  this 
view  is  based  is,  that  Avhile  an  answer  might  bo  true,  and 
the  matters  set  forth  in  it  might,  upon  their  face,  seem  to 
form  a  sufficient  defense  to  the  complaint,  yet  they  might  be 
afifected  bv  other  matters  in  avoidance,  well  known  to  the 
defendant,  but  which  he  was  under  no  obligation  to  state  in 
his  answer;  that  in  order  to  authorize  the  interposition  of 
the  court,  something  more  ought  to  be  required  than  an 
exhibition  of  facts  which,  if  neither  explained  nor  avoided, 
would  present  an  obstacle  to  plaintiff's  recovery;  that  to 
bring  a  case  completely  within  the  statute  it  must  appear 
<prima facie  that  the  defendant,  in  addition  to  having  an 
answer  to  the  complaint,  has  a  defense  which  is  sufficient 
and  meritorious  when  viewed  in  all  the  light  which  can  be 
thrown  upon  it  by  all  the  facts  involved  in  the  action.^  The 
affidavit  should  be  made  by  the  defendant  personally;  and 
if  not  so  made,  it  should  show  some  satisfactory  reason  why 
it  is  made  by  some  other  person.  If  made  by  the  defendant, 
it  is  not  indispensable  that  the  facts  relied  on  as  a  defense 
be  detailed,  though  that  practice  is  the  better  one.  If  the 
facts  are  not  set  forth  in  the  affidavit,  it  must  show  that  the 
defendant  "  has  fully  and  fairly  stated  the  case  to  his  coun- 
sel," and  that,  after  such  statement,  he  is  advised  by  his 
counsel,  and  believes  that  "  he  has  a  good,  full  and  perfect 


1  Lamb  v.  Nelson,  34  Mo.  501;  Fos- 
ter i).  Martin,  20  Tex.  118;  Castelo  v. 
Bishop,  51  Mo,  1G2;  Kailway  Co.  v. 
Gates,  32  Ind.  238;  Goldsberry  v. 
Carter,  28  Ind.  59;  Frost  v.  Dodge,  15 
Ind.  130.  A  different  rule  prevails  in 
other  States.  Woodward  v.  Backus, 
20  Cal.  137. 

104 


sPeople  V.  Rains,  23  Cal.  127. 

^  Jones  V.  Russell,  3  Howard  P. 
324  ;  Mowry  v.  Hill,  11  Wis.  140.  But 
the  rule  has  in  Wisconsin  been 
changed  by  statute.  See  Town  of 
Omro  V.  Ward,  19  Wis.  232. 


Chap.  VII.]        MAY  CONTPw\J)ICT  THE  RECORD.  g §108-109 

defense  to  tlie  action  upon  tlie  merits."  An  afSdavit  show- 
ing that  defendant  had  stated  "  his  defense"  is  insufficient, 
because  it  does  not  show  that  he  has  disclosed  all  the  ma- 
terial facts  affecting  the  action,  nor  what  matters  in  avoid- 
ance of  his  defense  exist.  It  should  show  that  he  had 
stated  "  the  case."^  Where  the  affidavit  is  made  by  some 
person  other  than  the  defendant,  it  should  appear  that  such 
person  is  acquainted  with  the  facts  he  attempts  to  make 
known  to  the  court.  An  affidavit  by  the  attorney  that  from 
an  examination  of  the  defendant's  case,  so  far  as  he  has 
been  able  to  examine  it,  he  verily  believes  it  is  better  than 
plaintiff's,  is  therefore  insufficient.  It  does  not  show  that 
the  attorney  knows  what  the  defense  is  ;  nor  whether  the 
examination  was  meager  or  thorough.  Neither  does  he 
state  that  the  defendant  had  fully  and  fairly  stated  the  case, 
and  "what  in  view  of  such  statement  is  his  jjrofessional 
opinion  touching  the  defense."  But  this  omission  in  an 
affidavit  made  by  an  attorney,  is  immaterial  ;  for  the  state- 
ments of  the  defendant,  incorporated  into  an  affidavit  made 
by  another  person,  is  nothing  "  but  hearsay,  and  therefore 
entitled  to  no  weight. "^ 


"CD' 


§109.  May  Contradict  the  Record,  but  not  the  Affidavit 
of  Merits.  In  applications  under  these  statutes  the  parties 
are  at  liberty  to  contradict  the  record,  and  to  establish,  by 
any  competent  evidence,  the  truth  of  the  facts  upon  which 
their  claim  to  relief  is  based. ^  But  the  hearing  of  evidence 
is  confined  to  the  question,  whether  the  judgment  has  been 
taken  through  the  inadvertence,  mistake,  surprise  or  ex- 
cusable neglect  of  the  defendant.  The  applicant  is  not 
required  to  make  more  than  such  a  prima  facie  showing  of 
merits  as  arises  from  his  own  affidavits.  The  code  did  not 
intend  that  there  should  be  two  trials  of  the  merits.  There- 
fore the  defendant  is  not  required  to  prove  his  defense,  as 
he  would  at  the  trial,  nor  can  his  affidavits  of  merits  be 


1  Bumham  v.  Smith,  11  Wis.  258,    I     » McKinlejrv.  Tuttle,  34  Cal.  235. 

2  Bailey  v.  Taafle,  2i>-Cal.  422.  |  Mosseaux  v.  Brigham,  19  Verm.  457. 

105 


ggllO-111 


LAW  OF  JUDGMENTS. 


[Cliap.  VII. 


controverted. *  In  California,  in  addition  to  an  affidavit  of 
merits,  the  payment  of  costs  is  an  indispensable  condition, 
to  precede  the  setting  aside  of  a  judgment  ;  and  if  relief  be 
granted  in  the  absence  of  such  affidavit,  and  -svithout  re- 
quiring the  payment  of  costs,  the  order  granting  it  will  be 
reversed  upon  appeal  ;-  but  if  the  only  error  is  in  not 
directing  payment  of  the  costs  accruing  to  the  plaintiff  up 
to  the  time  of  serving  notice  of  the  motion,  then  the  ap- 
pellate court  will  modify  the  order,  at  the  cost  of  respond- 
ent, by  requiring  the  insertion  of  the  statutory  prerequisite.^ 

§  110.  Ne-w  Motion  treated  as  Amendment  of  an  Old 
one. — In  Wisconsin,  an  application,  granted  in  the  loAver 
court,  was  dismissed  in  the  Supreme  Court  for  want  of  an 
affidavit  of  merits,  without  prejudice  to  a  new  motion.  But 
during  the  time  involved  in  determining  the  first  motion,  the 
period  in  which  the  statute  authorized  an  application  for  re- 
lief expired.  A  new  motion  was,  however,  at  once  made ;  and 
was  opposed,  on  the  ground  that  it  came  too  late.  Where- 
upon it  was  adjudged  to  be  substantially  a  continuation  of 
the  old  motion,  in  the  nature  of  an  amendment  of  the  papers^ 
on  which  that  motion  was  founded;  and  being  otherwise  meri- 
torious and  in  conformity  to  the  practice,  it  was  granted.  * 

§  111.  Lenience  of  New  York  Courts. — These  statutes 
surely  were  not  designed  to  confer  upon  the  same  court 
both  an  original  and  an  appellate  jurisdiction  over  the  same 
cause ;^  nor  yet  to  allow  a  party  once  having  an  ample  oppor- 
tunity to  present  his  defense  or  cause  of  action,  to  re-pre- 
sent it  at  some  future  time,  with  such  other  features  as  a 
more  mature  reflection  happened  to  suggest.  Yet  there  are 
cases  scarcely  reconcilable  with  any  other  theory.  They 
have  chiefly,  if  not  exclusively,  been  determined  in  a  State, 
where  judgments  seem  to  be  regarded  not  as  inviolate  and 


1  Pratt  !>.  Kcils,  28  Ala.  390;  Fran- 
cis V.  Cox,  33  Cal.  323;  Hill  v.  Crump, 
24  Ind.  271;  Gracier  v.  Weir,  S.  C. 
Cal.  Oct.  T.  1872-4  P.  S.  R.  179; 
Bahk  V.  Harrison,  4  Upper  Canada 
Pr.  Rep.  331;  Wooster  Coal  Co.  v. 
Nelson,  Id.  343;  Buck  v.  Havens,  40 
Ind.  221. 

106 


2  People  V.  O'Connell,  23  Cal.  281. 
sLect  r.  Grants,  36  Cal.  288. 
4 Butler  V.  Mitchell,  17  Wis.  52. 
5  Greer  v.  Mayor  of  New  York,_  4 
Robt.  G75. 


Cliap.  VII.]  LENIENCE   OF   N.  Y.    COmiTS.  Pll 

enduring   testimonials,  but  as  temporary  structures  to  bo 
torn.clown,  remodeled  or  rebuilt,  wlieuever  tlie  builders  feel 
competent  to  improve  the  original  workmanship  or  design. 
Thus,  in  one  case,  a  judgment  in  all  respects  regular,  and 
resulting  from  a  trial  in  wliieh  there  was  no  pretense  of  any 
want  of  opportunity  to  defend,  and  at  which  both  parties 
were  represented  by  counsel,  was  set  aside  because  of  an 
error  of  the  court  in  estimating  the  value  of  a  life-estate. 
The  defendant  was  a  municipal  corporation,  whose  counsel 
was  an  elective  officer  not  under  its  control.     This  counsel 
was  obliged  to  attend  to  a  vast  amount  of  business,  and 
could  not,  therefore,  devote  much  attention  to  any  particular 
case.     These  were  the  reasons  upon  which  the  court  justi- 
fied its  interposition.     In  another  case,  the  action  was  for 
an  amount  due  under  a  contract  for  work  upon  the  streets. 
Judgment  was  obtained,  the  defendant  being  properly  in 
court,  and  contesting  plaintiff's  right  to  recover  part  of  his 
demand.     The   defendant  was    afterward   relieved  from  a 
portion  of  the  judgment,  on  the  ground  that  a  misappre- 
hension existed  between  plaintiff  and  defendant,  in  making 
the   original   contract,    by   reason   of    which   neither   had 
assented  to  the  contract  as  understood  by  the  other.  ^     The 
mistake  of  counsel  in  conducting  the  case,  arising  out  of 
his  ignorance  of  the  law,  was  the  only  ground  upon  which 
relief  from  another  judgment  was  granted.     The  principles 
which,  in  the  opinion  of  the  court,  should  bo  applied  to  the 
case,  were  indistinctly  defined  as  follows:  "There  may  be  a 
case  so  novel  and  peculiar  in  its  nature,  in  which  it  is  so 
palpable  that  actual  injustice  may  and  probably  has  been 
done,  and  where  there  are  no  other  means  of  relief,  that  fehe 
court  will  feel  bound  to  relieve  the  jDarty  from  the  conse- 
quence  of  the   inadvertence  and   mistake  of  his   counsel, 
although  it  arose  from  a  misapprehension  of  the  law  or 
rules  of  practice,  if  that  can  be  done  without  prejudice  to 
the  rights  of  the  parties :  by  which  is  meant,  without  any 
loss  to  them,  other  than  such  as  may  necessarily  result  from 
establishing  what  may  be  shown  to  bo  the  rights  of  the 
party  applying."' 

1  Pettigrew  v.  Mayor  of  N.  Y.,  17  I      -  Levy  v.  Joyce,  1  Bosw.  622. 
How.  P.  492.  \ 

107 


§§112-113  LAW   OF  JUDGMENTS.  [Cliap.    YII. 

§  112.     Neglect  of  Attorney. — The  neglect  of  an  (ittor- 
ney  is  uniformly  treated  as  the  neglect  of  the  client,'  ex- 
cept in  New  York.     A  default  will  not  be  opened  because 
the  attorney  had  prepared  a  demurrer,  but  had  failed  to  file 
it  by  reason  of  his  miscalculating  the  time  wheii  it  was  due; 
neither  Avill  relief  be  granted  because  the  attorney  forgot 
the  day  and  time  for  trial.''     And  in  general  no  mistake, 
inadvertence  or  neglect,  attributable  to  the  attorney,  can  be 
successfully  used  as  a  ground  for  relief,  unless  it  would  have 
been  excusable  if  attributable  to  the  client.*     In  Vermont, 
the  neglect  of  a  person  who  undertook  to  act  for  the  attorney, 
is  treated  in  the   same   manner   as  if   committed  by   the 
attorney.     Thus  where  the  petitioner's  attorney  being  sud- 
denly called  away,  requested  another  person  to  attend  the 
suit,  and  to  get  an  attorney  to  appear,  and  the  party  agreed 
to  comply  with  the  request,  but  forgot  the  matter  entirely, 
it  was  held  that  the  neglect  of   this  party  could  only  be 
regarded  as  the  neglect  of  the  attorney,  and  that  considered 
in  that  light,  it  was  not  excusable.  ^     In  New  York,  a  de- 
fault and  judgment  thereon  was  set  aside  on  showing  that 
proceedings  were  utterly  neglected  by  the  attorney,   who 
was  rendered  incompetent  by  his  habits,  because  an  attor- 
ney ought  not  to  be  permitted  to  inflict  unbounded  damage 
on  his  client,  there  being  no  redress  except  the  doubtful 
one  of  an  action  for  negligence. « 

§  113.  Mistake. — A  mutual  and  honest  mistake  between 
the  defendant  and  an  attorney,  in  relation  to  the  retainer  of 
the  latter,  by  reason  of  which  the  defendant  was  not  repre- 
sented at  the  trial,  authorizes  the  granting  of  relief  from 
the  judgment.'  Where  the  defendants  attended  court  until 
the  judge  announced  that  the  cause  would  not  be  tried  at 
that  term,  when  they  left,  and  the  cause  was  afterward 
called  and  judgment  entered,  it  was  opened  upon  applica- 


lAustiu  V.  Nelson,  11  Mo.  192; 
Kerbyu.  Chadwell,  10  Id.  392;  Mer- 
ritt  V.  Putnam,  7  Minn.  493. 

2  People  V.  Eains,  23  Cal.  127. 

sBabcock  v.  Brown,  25  Verm.  550. 

4Spaulding  v.  Thompson,  12  lud. 
477. 

108 


5  Davidson  v,  Heflfron,  31  Verm. 
G87, 

cElston  V.  Sclielling,  7  Eobt.  74; 
Mcacbam  v.  Dudley,  G  Wend.  511. 

nicKinley  v.  Tuttle,  31  Cal.  235. 
For  contra  opinion,  see  Kile  v.  Lump- 
kin, 40  Geo.  p.  50G. 


Chap.  VII.]  EXCUSABLE  NEGLECT.  ggll3-114 

tion,  accompanied  with  affidavit  of  merits.'  The  mistake  of 
defendants  in  concUiding  that  the  judgment  would  not  be 
entered  against  them  personally,  but  only  against  them  as 
trustees,  that;  being  the  only  capacity  in  which  they  were 
liable,  justifies  the  court  in  vacating  a  judgment  taken 
against  them  individually.'^  Judgment  should  not  be  set 
aside  on  the  gi'ound  that  the  defendant  mistook  the  court 
in  which  the  action  was  pending;^  nor  because  he  did  not 
apx^ear  on  account  of  his  having  no  recollection  of  the  ser- 
vice of  summons.*  A  German  was  prosecuted  in  a  criminal 
and  in  a  civil  action  at  the  same  time,  for  obstructing  a  high- 
way. He  understood  the  English  language  very  imper- 
fectly, and  seemed  to  confound  the  two  actions.  He 
attended  to  the  criminal  action  diligently,  but  was  defaulted 
in  the  civil.  He  applied  on  the  next  day  after  the  entry  of 
the  default,  to  have  the  judgment  set  aside,  and  the  appli- 
cation was  granted  on  payment  of  the  attorney's  fees.  ^  So 
where  a  very  illiterate  man  applied  to  an  attorney,  and  stated 
that  his  goods  had  been  attached,  that  he  did  not  owe  the  debt, 
and  that  ho  wished  to  have  the  goods  released,  and  the  attor- 
ney took  proceedings  to  have  the  goods  released,  but  did  not 
make  any  defense  to  the  action,  because  he  did  not  know 
that  any  summons  had  been  served,  the  judgment  was  set 
aside,  because  the  defendant  being  an  illiterate  man,  did 
not  know  that  he  need  give  his  attorney  any  other  informa- 
tion than  that  his  property  was  attached,  and  the  attorney, 
by  not  having  further  information,  was  misled  as  to  the 
immediate  necessity  of  making  a  defense.'' 

§  114.  Excusable  Neglect. — The  defendant,  as  soon  as 
served  with  summons,  set  about  making  such  inquiries  as 
were  necessary  to  his  defense.  He  was  soon  compelled  to 
go  beyond  the  State  on  important  business,  and  to  remain 
away  several  weeks.  On  returning  home,  he  was  obliged, 
by  important  business,  to  go  into  another  State,  and  to  re- 
main there  several  weeks.  He  constantly  intended  to  pre- 
pare his  answer,  but  owing  to  his  absence  from  home,  and 


lEatliff  u.  Baldwin,  29  Ind.  16. 
2  Butler  V.  Mitchell,  17  Wis.  52. 
2  Eobertson  v.  Bergen,  10  Ind.  402. 
4Langdon  v.  Bullock,  H  Ind.  3-11. 


5Bertline  v.  Baner,  25  Wis.  486. 
6  Sweet  I'.  McGlynn,  No.  3,702  S. 
C.  of  Cal.  April.23,  1873, 

109 


gpi-J:-115  LAW  OF  JUDGMENTS.  [Chap.    VII. 

tbo  pressure  of  liis  otlier  engagements,  lie  mistooh  the  time 
wlien  liis  default  was  due.  The  action  of  the  lower  court 
in  refusing  to  grant  relief  upon  a  showing  of  these  facts  was 
reversed,  because  "the  mistake  arising  from  the  urgency 
and  multitude  of  defendant's  business,  was  such  a  mistake 
as  any  prudent  and  vigilant  man  might,  under  like  circum- 
stances, fall  into.^  An  affidavit,  showing  that  defendant 
had  employed  counsel,  and  had  caused  a  subpena  to  issue 
for  his  witness,  Tout  had  been  prevented  from  attending 
court  by  the  dangerous  illness  of  his  wife;  that  his  counsel 
was  provost  marshal,  and  on  account  of  being  engaged  in 
enforcing  the  draft,  had  been  unable  to  attend  the  trial, 
discloses  such  a  state  of  facts  that  it  would  be  an  abuse  of 
the  discretion  of  the  court  to  refuse  to  vacate  the  judgment.* 
A  defendant  who  was  constructively  served,  and  was  absent 
from  the  State,  suffering  from  such  a  bodily  disability  as 
prevented  his  return,  is  entitled  to  have  his  default  set 
aside. ^  That  defendant  was  attacked  by  a  severe  illness, 
during  which  his  life  was  despaired  of,  and  his  mind  so  im- 
paired, that  he  was  incapable  of  making  his  defense,  is  a 
good  ground  for  vacating  a  judgment.*  Although  a  stipu- 
lation is  not  binding  on  the  parties  to  it,  unless  made  in 
writing,  yet  the  neglect  of  a  party,  occasioned  by  a  verbal 
agreement  between  himself  and  his  adversary,  is  "  excus- 
able, "s  And  where  the  plaintiff  promised  to  call  at  the 
defendant's  office  "and  fix  the  matter  up,"  and  the  defend- 
ant relying  upon  the  promise,  neglected  the  suit,  the  judg- 
ment was  opened  by  the  court.  An  appeal  being  taken, 
the  appellate  court  thought  that  there  was  negligence  on 
the  part  of  the  defendant;  but  that  it  was  of  the  excusable 
nature  which  the  statute  was  provided  to  relieve;  that 
while  it  was  imprudent  to  rely  on  the  promise,  yet  it  was  in 
ill  grace  for  the  plaintiff  to  urge  that  the  negligence  occa- 
sioned by  himself  was  inexcusable.  ° 

g  115.     Inexcusable  Neglect. — Every  suitor  should  per- 


1  Johnson  v.  Eldred,  13  Wis.  482. 

2  Hill  V.  Crump,  24  Ind.  291. 

3 Sage  V.  Matlieny,  14  lud.  3G9. 
4Luscomb  V.  Maloy,  20  Iowa,   444. 

110 


E  Montgomery-^u.  Ellis,  6  Hew.  P. 
326. 

G  Stafford  V.  McMillan,  25  Wis.  566. 


Cliap.  TIL]  INEXCUSABLE  NEGLECT.  f;115 

sonally  attend  to  liis  case,  or  be  represented  by  an  attorney 
in  fact.  Therefore,  an  affidavit  sliowing  that  the  defendant 
expected  the  witnesses,  whom  he  had  subpenaed,  to  appear 
at  the  trial,  aud  on  that  account,  and  because  his  counsel 
knew  of  the  defense,  did  not  attend  personally,  and  the 
witnesses  did  not  attend,  and  judgiiient  was  obtained  on 
account  of  their  absence,  there  being  no  one  present  to 
make  an  affidavit  for  a  continuance — does  not  show  an  ex- 
cusable neglect.  The  duty  of  the  counsel  did  not  extend  to 
procuring  witnesses,  nor  to  making  affidavits  for  continu- 
ances. The  defendant,  neither  being  present  to  perform 
that  duty,  nor  having  any  one  to  represent  him  for  that  pur- 
pose, was  culpably  negligent. »  A  judgment  by  default 
should  not  be  vacated  on  the  ground  of  excusable  neglect, 
because  the  answer  required  more  than  ordinary  time  for 
its  preparation,  and  the  attorney  was,  during  a  part  of  the 
time,  out  of  town.^  Any  difficulty  arising  from  this  source 
could,  undoubtedly,  be  obviated  by  an  application  to  the 
court  or  the  plaintiff's  counsel  for  an  extension  of  time.  An 
affidavit  showing  that  defendant,  when  he  retained  counsel 
in  the  case,  was  imder  the  impression  that  the  time  to 
answer  had  not  expired;  that  he  did  not  recollect  the  pre- 
cise day  when  the  summons  was  served;  that  he  was  quite 
ill  at  the  time,  and  did  not  as  carefully  note  the  time  as  ho 
would  otherwise  have  done — is  entirely  insufficient.  It  does 
not  appear  that  the  illness  of  defendant  extended  beyond 
one  day;  nor  that,  during  that  day,  it  rendered  him  unfit 
for  ordinary  business.^ 

1  WaddeU  v.  Wood,  64  N.  C.  621.     I      SEUiot  v.  Shaw,  16  Cal.  377. 
8  Bailey  y  Taafo,  29  CaL  422.  | 

111 


gll6  LAW  OF  JUDGMENTS.  [Chap.  VIII. 


CHAPTEK  Vllt. 

VOID  JUDGMENTS-INQUmiES  IN  COLLATEEAL   PEOCEEDINGS 
IN  RELATION  TO  THE  JURISDICTION  OF  COURTS  OF  RECOED. 

§  IIG.  Description  of  Void  Judgments. 

§  117.  Effect  of. 

g  118,  Jurisdiction. 

§  119.  Sources  of  Jurisdiction. 

§  120.  Want  of  Jurisdiction  over  Subject  Matter. 

§  121.  Loss  of  Jurisdiction. 

§  122.  Courts  of  Eecord,  and  Courts  not  of  Record. 

§  123.  Courts  of  Eecord  in  exercise  of  Special  Authcrity. 

§  124.  Presumptions  of  Jurisdiction. 

§  125.  No  Presumption  against  the  Kecord. 

§  12G.  Defects  in  Obtaining  Jurisdiction. 

§  127.  Constructive  Service. 

§  128.  Appearance  by  Attorney. 

§  129.  Defaults. 

§^  130.  Jurisdictional  Findings. 

§  131.  Jurisdictional  Inquiries  Confined  to  the  Record. 

S  132.  Silence  of  Kecord. 

§  133.  Cases  Permitting  Inquiry  beyond  the  Record. 

§  13 1.  Ptcasons  for  Holding  Record  Conclusive. 

§  135.  Judgment  never  Voi  1  for  Error. 

I  135(1.  Judgments  without  any  Issue. 

§  13G.  Judgments  Void  as  to  some  of  the  Parties. 

g  137.  Judgment  for  Contempt. 

§  138.  Rendered  on  Sunday. 

§  130.  Rendered  without  Authority  of  the  Court. 

g  140.  Judgment  after  Death  of  Defendant. 

§  141.  Against  Party  not  Named  in  the  Record. 

§  ji42.  When  Jurisdiction  over  Party  Ceases. 

§  143.  Jurisdiction  Limited  to  Certain  Purposes, 

S  144.  Disqualification  of  Judges. 

§  145.  Disqualification  of  Judges  at  Common  Law. 

g  14G.  Statutory  Prohibition. 

$  lt,^  Judges  Sitting  pro  forma. 

g  148.  Judges  dejacio. 

§  148a.Judgment  Wrongfully  Altered. 

§  116.  Void  Judgments. ^Tlie  judgment  being  formally 
entered  upon  the  record,  and  remaining  unaffected  by  any 
proceeding  to  vacate  it,  in  the  case  wherein  it  was  pro- 
nounced, is  likely  to  be  offered  as  evidence  in  some  other 
action  or  proceeding.  The  material  inquiry  then  arising,  is 
whether  this  profe.ssed  determination  of  the  rights  of  the 
parties,  is  what  it  assumes  to  be  ;  or  whether,  from  some 
112 


Chap.  VIII.]  VOID  JUDGMENTS.  gllG 

latent  or  patent   infirmity,   it  is  to  bo  regarded  as  waste 
paper — a  mere  hridum  falmen.     The  manner  in  which  this 
inquiry  should  be  conducted,  and  the  sources  from  which 
information  should  be  received,   are  subjects  over  which 
there  has  been,  and  there  still  is,  much  discussion  and  dis- 
sension, in  which  adverse  conclusions  have  been  announced 
on  either  side  with  an  assurance  approaching  to  dogmatism. 
No  specific  description  of  void  judgments  can  be  framed 
which  does  not  conflict  with  the  decisions  of  many  of  the 
courts.     It  has  often  been  said   that  a  judgment  is  void  f/t/jl  ■ 
whenever  the  court  which  pronounced  it  had  not  jurisdic-<f  ^ZTi.'^a 
tion  of  the  parties  to  the  judgment,  or  of  the  subject  matter     Oj/to 
in  controversy.     This  is  undoubtedly  true  everywhere,  pro-  '^ 

vided  the  want  of  jurisdiction  is  not  controverted,  or  is 
manifest  from  an  inspection  of  the  record.  It  is  also  true 
in  some  of  the  States,  even  though  the  jurisdictional  facts 
are  asserted  in  the  record.  The  weight  of  the  adjudged 
cases,  as  will  hereafter  be  shown,  sustains  the  proposition 
that  the  judgment  of  a  domestic  court  of  general  jurisdic- 
tion is  not  void,  except  when  the  court  has  no  jurisdiction 
over  the  subject  matter  of  the  suit,  or  when,  haviug  such 
jurisdiction  over  the  subject  matter,  it  is  shown  by  the  record 
to  have  had  no  jurisdiction  over  the  judgment  defendant. 
A  judgment  was  said  to  be  void  if  "it  emanated  from  a 
court  of  limited  jurisdiction  not  acting  within  its  legitimate 
prerogative,  or  in  a  court  of  general  jurisdiction,  where  the 
parties  are  not  actually  or  by  legal  construction  before  the 
court  and  subject  to  its  jurisdiction.  Judgments  of  courts 
of  general  or  competent  jurisdiction  are  not  considered 
under  any  circumstances  as  mere  nullities,  but  as  records 
importing  absolute  verity  and  of  binding  efficacy,  until 
reversed  by  a  competent  appellate  tribunal.  They  are  void- 
able: not  void."'  This  language  goes  beyond  what  would 
anywhere  be  regarded  as  sound  principle,  if  it  is  to  be  un- 
derstood as  asserting  that  all  judgments  of  courts  of  general 
jurisdiction,  having  jurisdiction  over  the  subject  matter, 
are  valid.  To  hold  a  judgment  binding  when  the  record 
disclosed  a  want  of  authority  over  the  defendant,  would  be 
to  impeach,  rather  than  to  sustain  the  absolute  verity  of  the 

1  roudcr  r.  Mostly,  2  Florida,  267, 

(8)  113 


811G-J17  LAW  OF  JUDGMENTS.  [Chap.   YIII. 

record.     Some  judges,  while  refusing  to  permit  any  inquiry 
beyond  the  record,  to  show  that  a  court,  when  pronouncing 
judgment,   did  not  have  jurisdiction  over  the  defendants, 
have  nevertheless  said  that  a  judgment  without  such  juris- 
diction is  void,  but  that  rules  of  evidence  dictated  by  pub- 
lic policy,  exclude  such  testimony,  not  in  the  record,  as  is 
necessary  to  make  its  void  nature  apparent.     But  the  w^ord 
void  can  with  no  propriety  be   applied  to  a  thing  which  ap- 
pears to  bo  sound,  and  which,  while  in  existence,  can  com- 
mand and  enforce  respect,   and  whose  infirmity  cannot  be 
made  manifest.     A    judgment  rendered  wdthout    in    fact 
bringing  the  defendants  into  court,  unless  the  want  of  au- 
thority over  them  appears  in  the  record,  is  no  more  void 
than  if  it  were  founded  upon  a  mere  misconception  of  some 
matter  of  law,  or  of  fact,  occurring  in  the  exercise  of  an  un- 
questionable jurisdiction.      In  either   case,    the  judgment 
can  be  avoided  and  raii&e  functus  officio  hj  some  appropriate 
proceeding   instituted    for    that   purpose;    but   if    not   so 
avoided,  must  be  respected  and  enforced. 

§  117.     Efleet  of  Void  Judgments. — A  void  judgment  is 
in  legal  effect  no  judgment.    By  it  no  rights  are  divested. 
From  it  no  rights  can  be  obtained.      Being   worthless  in 
itself,  all  proceedings  founded  upon  it  are  equally  worth- 
less.    Ifc  neither  binds  nor  bars  any   one.     All  acts  per- 
formed under  it,   and  all  claims  flowing  out  of  it  are  void. 
The  parties  attempting  to  enforce  it  may  be  responsible  as 
trespassers.     The  purchaser  at  a  sale   by  virtue  of  its  au- 
thority, finds  himself  without  title  and  without   redress,  i 
The  first  and  most  material  inquiry  in  relation  to  a  judg- 
ment or  decree,  then,  is  in  reference  to  its  validity.     For  if 
it  be  null,  no  action  upon  the  part  of  the  plaintiff,  no  inac- 
tion upon  the  part  of  the  defendant,  no  resulting  equity  in 
the  hands  of  third  persons,  can  invest  it  with  any  of  the 
elements  of  power   or  of  vitality.     This  inquiry  is  to  be 

1  Campbell  v.  McCahan,  41  111.  45;  I  v.  Bagley,  35  Tex.  345  ;  Morton  v. 
Eoberts  v.  Stowers,  7  Busli.  295;  Root,  2  Dillon,  C.  C.  312:  Com. 
Huls  V.  Buntim,  47  111.  397  ;  Dane's  Bank  v.  Martin,  9  S.  &  M.  G13  ;  Doe 
Ab.  Ch.  14G,  art.  5,  $§  1,  8;  Sherrill  v.  v.  McDonald  27  Miss.  6i0  ;  Hargis  v. 
Goodrum,  3  Humph,  430;  Andrews  Morse,  7  Kan.  417. 
V.  State,  2  Sneed,  550  ;  Hollingswortli  | 

114 


Cliap.  YIII.]       souBCES  or  jurisdiction.  g §117-119 

prosecuted  only  by  an  investigation  of  jurisdictional  facts, 
upon  whose  real  or  assumed  existence  every  valid  judgment 
must  stand. 

§  118.  Jurisdiction  — "The  power  to  hear  and  determine 
a  cause,  is  jurisdicjiion  ;  it  is  coram  jiuUce  ^vhenexer  a  case  is 
presented  which  brings  this  power  into  action  ;  if  the  peti- 
tioner states  such  a  case  in  his  petition,  that  on  a  demurrer 
the  court  would  render  judgment  in  his  favor,  it  is  an  un- 
doubted case  of  jurisdiction. "1  "Before  this  power  can  be 
affirmed  to  exist,  it  must  be  made  to  appear  that  the  law 
has  given  the  tribunal  capacity  to  entertain  the  complaint 
against  the  person  or  thing  sought  to  be  charged  or  affected; 
that  such  complaint  has  been  preferred,  and  that  such 
person  or  thing  has  been  properly  brought  before  the  tri- 
bunal to  answer  the  charge  therein  contained."^  There  can 
be  no  doubt  that  the  filing  of  a  petition  or  complaint  such 
as  ought  not  to  be  deemed  sufficient  upon  demurrer,  may 
confer  jurisdiction.  The  power  to  decide  upon  the  suffi- 
ciency of  a  cause  of  action  as  presented  by  the  complain- 
ants' pleading,  like  the  power  to  decide  any  other  legal 
proposition,  though  erroneously  applied,  is  binding  until 
corrected  by  some  superior  authority.^ 

§  119.  Sources  of  Jurisdiction.  —  Jurisdiction  is  con- 
ferred upon  courts  by  the  constitution  and  laws  of  the 
country  in  which  they  are  situate,  "authorizing  them  to 
hear  and  determine  causes  between  parties,  and  to  carry 
their  judgments  into  effect."*  Jurisdiction  over  the  sub- 
ject matter  is  a  condition  precedent  to  the  acquisition  of 
authority  over  the  parties,  and  is  conferred  by  the  "author- 
ity which  organizes  the  court,  and  is  to  be  sought  for  in  the 
general  nature  of  its  powers,  or  in  authority  specially  con- 
ferred." Jurisdiction  over  the  person  is  obtained  by  serv- 
ice of  process,  or  in  some  other  manner  authorized  by  law, 
as  by  the  voluntary  appearance  of  a  party  during  the  prog- 

'United  States  v.  Arredonda,  6  Pe- 
ters, 709. 

"Jurisdiction  has  titen  been  said 
to  be  the  power  to  hear  and  deter- 
mine. It  is,  in  truth,  the  power  to 
do  both,  or  either  —  to  hear  without 


determining— or  to  determine  without 
hearing."  £x  parte  Bennett,  ii  Cal. 
84. 

^Sheldon  v.  Newton,  3  Ohio  S.  494. 

^ilcNamara  on  Nullities,  p.  137. 

4  Withers  v.  Patterson,  27  Tex.  491. 

115 


§gll0-121  LAW  OF  JUDGMENTS.  [Cbap.  VIII. 

ress  of  a  cayse.     Jurisdiction  over  tlie  res  "  is  obtained  by 
its  seizure  under  process  of  the  court."  ^ 

§  120.     Want  of  Jurisdiction  Over  Subject  BOiatter.— A 
Judgment  pronounced  by  a  tribunal  having  no  authority  to 
determine  the  matter  in  issue,  is  necessarily  and  incurably 
void,  and  may  be  shown  to  be  so  in  any* collateral  or  other 
proceeding  in  which  it  is  drawn  in  question.^     A  criminal 
information  in  the  Court  of  Common  Pleas,  or  a  common 
recovery  or  writ  of  right  in  the  King's  Bench,  would^  be 
simply  void  and  could  not  even  be  pleaded  in  justification 
by  the  officer  of  the  court  who  executed  it.  3     When  the  tri- 
bunal has  not  jurisdiction  over  the  subject  matter,  no  aver- 
ment can  supply  the  defect,  no  amount  of  proof  can  alter 
the  case.     As  power  over  the  subject  matter  is  given  by 
law,  nothing  but  an  additional  grant  from  legislative  au- 
thority can  extend  that  power  over  a  class  of  cases  formerly 
excepted;  and  neither  the  acquiescence  of  the  parties,  nor 
their  solicitations,  can  authorize  any  court  to  determine  any 
matter  over  which  the  law  has  not  authorized  it  to  act.  ^ 
'  The  grant  of  jurisdiction   must   proceed    from   competent 
authority.     Where  a  court  acts  imder  and  by  virtue  of  a 
certain  Act,  and  such  Act  is  unconstitutional,  its  judgments 
are  void.     The  jurisdiction  resting  on  the  Act,  and  the  Act 
resting  on  no  sufficient  support,  both  must  fall,  s 

§  121.  Loss  of  Jurisdiction. — A  tribunal,  having  un- 
doubted jurisdiction  of  a  cause  at  a  certain  stage,  may  lose 
such  jurisdiction  at  some  subsequent  stage  of  the  pro- 
ceedings. This  frequently  happens  when  a  judgment  has 
been  pronounced  in  the  appellate  court  upon  appeal.  The 
judgment  of  the  superior  court  iu  this  case  can  not  be 
varied  in  the  original  tribunal;  nor  examined  for  any  other 
purpose  than  to  carry  it  into  effect;  nor  reviewed  for  error 


^Cooper  )'.  Eoynolds,  10  Wall.  308. 

'■^Gilliland  v.  Seller's  Admr.,  2  Ohio 
S.  223 ;  Morse  v.  Presby,  5  Foster, 
299;  Eaton  v.  Badger,  33  N.  H.  228. 

sMoore  v.  Houstan,  3  S.  S:.  R.  ]C9; 
■Williamson's  case,  2  Casey,  9,  18; 
The  case  of  the  Marshalsea,  10  Coke, 
G8,76. 

IIG 


4 Dicks  V.  Hatch,  10  Iowa,  380: 
State  V.  Fosdick,  21  La.  An.  258; 
Mora  t'.  Kuzac,  21  Id.  751;  Moore  u. 
Ellis,  18  Mich.  77;  Damp  v.  Town 
of  Dane,  29  Wj^.  419;  Eichardson  v. 
Hunter,  23  La.  An.  255. 

■•  Eeed  v.  Wright,  2  G.  Greene,  15. 


Cliap.   VIII.]  LOSS  OF  JURISDICTION.  p21 

apparent;  nor  intermedJlecl  with,  further  than  to  settle  so 
much  as  has  been  remanded.  ^     Neither  can  the  lower  court 
do  anything  to  prevent  the  immediate  execution  of  the  judg- 
ment of  the  appellate  court. "     If  the  statute  requires  regu- 
lar terms  to  be  held  for  the  trial  of  causes,  the  court  in  the 
intervals  between  those  terms  is,  for  the  purpose  of  conduct- 
ing trials,   in  the  same  condition  as  though  its  authority 
over  the  case  were  entirely  withdrawn.     It  is  no  longer  a 
court.    Judicial   powers  can  not  be  conferred  upon  it  by 
consent  of  the  parties  ;  and  any  judgment  rendered  upon  a 
trial  had  in  pursuance  of  such  consent,  is  void,  ^  and  is  so 
wanting  in  even  the  color  of  judicial  authority  that  it  will 
not  be  reversed  upon  appeal.*     If  the  same  district  is  com- 
posed of  different  counties,  a  trial  in  one  of  the  counties  on 
the  commencement  day  of  a  term  in  another  county,  though 
sanctioned   by  the   written  stipulation  of  both  parties,  is 
coram  nonjucUceJ     A  judge  in  one  district  may  preside  in 
another  district  in  place  of  the  judge  of  the  latter  district. 
But  this  does  not  authorize  two  judges  to  hold  separate 
courts  in  the  same  district  at  the  same  time.    Therefore,  an 
order  made  by  a  judge  presiding  out  of  his  district,  at  a 
time  when  the  judge   of  the  district  where  the   order  is 
made,  is  also  holding  court  therein,  is  void  ;  and  no  one 
can  be  punished  for  contempt  of  court  in  disobeying  such 
order.  G     In   California,   a  judgment  by  virtue  of   statute 
authority,   may  be  entered  in  vacation.     If  in  a  cause  the 
court  order  that  "  upon  filing  of  proofs,  and  testimony  as 
taken  by  the  court  commissioner,  and  the  case  be  submitted 
to  the  court  and  decided  at  chambers,  and  the  decision  and 


1  Ex  parte  Sihhald  v.  U.  S.  12  Pet. 
4S8;  McClanahan's  Heirs  v.  Hender- 
son's, 1  Monr.  261. 

2Marysville  v.  Buchanan,  3  Cal. 
212;  McMillan  v.  Eichards,  12  Id. 
468. 

3  Garlick  v.  T>imn,  42  Ala.  404  ; 
Brumley  v.  State,  20  Ark.  77;  Galusha 
V.  Butler,  2  Scam.  227  ;  Ex  parte  Os- 
born,  24  Ark.  479 ;  Hernandez  v. 
.James,  23  La.  An.  483. 

4  Wicks  V.  Ludwig,  9  Cal.  175;  Nor- 
wood V.  Kenfield,  34  Cal.  333  ;  Doss 


V.  "Waggoner,  3  Tex.  515  ;  Leclair  v. 
Globenski,  4  L.  C.  Eep.  139. 

5  Bates  V.  Gage,  40  Cal.  183  ;  Gregg 
V.  Cook,  Peck.  82 .  But  in  Iowa,  by- 
statute,  a  trial  commenced  with  a  bona 
fide  expectation  of  being  finished  be- 
fore the  close  of  the  term  may  be 
prosecuted  until  its  close,  though  it 
reaches  into  the  succeeding  term. 
State  V.  Knight,  19  Iowa,  94. 

6  People  V.  O'Neil,  S.  C.  of  Cal., 
Oct.  Term,  1873. 

117 


? ^121-122  LAW  OF  JUDGMENTS.  [Cliai^.   YIII. 


n 


judgraout  be  entered  as  of  tliis  term  of  tlie  court ;"  and  the 
court  thereafter  considers  such  testimony  after  the  adjourn- 
ment of  the  term,  and  enters  its  judgment  in  vacation, 
such  judgment  is  not  void.  The  order  amounted  to  a 
submission  in  i^resentl.  Such  submission  having  been  made 
in  term  time,  the  court  was  authorized  to  enter  judgment 
thereon  in  vacation.'  The  rule  that  a  judgment  is  abso- 
lutely void  if  ijronounced  by  a  court  not  having  jurisdiction 
of  the  subject  matter,  is  equally  applicable,  whether  the 
judgment  proceeded  from  a  court  of  general  or  of  special,  of 
foreign  or  of  domestic  jurisdiction  ;  and  whether  the  judg- 
ment be  questioned  directly  or  collaterally.  But  courts  not 
having  jurisdiction  over  a  subject  matter,  may,  when  an 
improper  case  is  attempted  to  be  litigated  before  them,  de- 
termine their  own  want  of  jurisdiction,  and  as  incident  to 
that  determination,  may  rentier  judgment  for  costs. ^ 

g  122.     Courts  of  Record  and  Courts  not  of  Record. — If, 

in  the  examination  of  a  judgment,  it  be  satisfactorily  ascer- 

1  Ex   parte  Bennett,    July    Term,  I  Jordan  v.  Dennis,  7  Met.  590  ;  Blair 


1872,   of  S.  C.   of  Cal.;  Pacific  Law 
Eeporter,  vol.  4,  p.  87  ;  44  Cal.  85. 

2  King    V.    Poole,  3G   Barb.    212  ; 
Gormly  v.  Mcintosh,  22  Barb.  271  ; 


u.  Cummings,  39  Cal.  GG7  ;  People  ex 
rel.  Leet  v.  County  Court  of  Placer 
County,  Oct.  Term,  18G9  ;  Burke  v. 
Johnson,  22  Ohio,  s.  2G8. 


Note  to  §  121.     Terms  of  Couet. — In  the  absence  of  any  statute  provid- 
ing to  the  contrary,  the  term  is  lost  unless  the  judge  appear  at  the  appointed 
time  and  open  court,  and  all  subsequent  proceedings  are  void.     {People  y. 
Sanchez,  24  Cal.  17;  People  v.  Bradwell,  2  Cow.  445.)     The  presence  of  the 
judge  is  also  indispensable  to  the  continuation  of  a  term  properly  opened. 
Thus,  in  a  case  in  Illinois,  the  judge  having  held  the  term  until  a  certain 
day,  adjourned  it  till  the  next  day.     He  then  left,  authorizing  (so  far  as  he 
could),  the  clerk  and  sheriff  to  open  and  adjourn  coiirt  from  day  to  day,  until 
another  judge  arrived.     But  when  this  action  was  called  in   question,  the 
Supremo  Court  of  the  State  held  that  "  the  judge  had  no  power  to  authorize 
the  ministerial  officers  of  the  court  to  exercise  judicial  powers,  even  in 
opening"  and  adjourning  the  court,"  and  that,  as  a  consequence,  the  term 
expired  on  the  first  day  of  the  judge's  absence.     ( Wight  v.  Wallhaum,  39  111. 
554.)     If  special  terms  are  authorized  to  be  held  after  the  giving  of  certain 
notice,  a  trial  had  and  judgment  entered  at  such  a  term ;  but,  in  the  absence 
of  the  required  notice,  is  certainly  so  irregular  as  to  be  set  aside  on  appeal, 
and  is  probably  void.     {Oram  v.  Pdleij,  IG  Cal.   18G.)     In  the  cases  cited, 
declaring  proceedings  void  because  transacted  at  a  time  or  place  where  the 
court   was   not   authorized   to   transact  business,    the   facts   rendering   the 
action  coram  nonjudice  seem  to  have  appeared  on  the  recoid,  or  to  have  been 

118 


Chap.  VIII.]       COURTS  OF  RECORD.  §122 

taiiiod  that  the  court  whose  sentence  it  is,  had  jurisdiction 
over  the  subject  matter  of  the  action,  and  was,  at  the  rendi- 
tion of  its  judgment,  authorized  to  act  as  a  court,  the  next 


admitted  by  the  parties.  But  a  question  of  some  difficulty  may  arise  where 
the  record  does  not  show  whether  the  judgment  was  entered  in  term  or  not. 
The  general  presumptions  indulged  in  favor  of  the  proceedings  of  courts  of 
general  jurisdiction  ought,  so  far  as  they  are  concerned,  to  make  a  prima 
facie  case  in  favor  of  those  proceedings  in  all  cases,  and  to  shield  them  from 
all  collateral  attacks  in  those  States  where,  as  in  California,  jurisdictional 
presumptions  seem  to  be  sacred.  In  Tennessee,  the  objection  was  made  on 
appeal,  that  while  the  court  appeared  to  have  been  opened  at  the  proper 
i)lace  at  the  first  day  of  the  term,  it  was  nowhere  shown  where  its  subse- 
quent sessions  were  held.  But  the  objection  was  overruled,  because  it  was 
presumed  by  law  that  the  court  was  held  where  it  first  met,  until  the  con- 
trary was  shown.  {SniUh  v.  State,  9  Humph.  10.)  In  regard  to  a  case 
where  the  records  of  the  court  failed  to  disclose  what  adjournments  were 
made  after  opening  the  term,  the  Supreme  Court  of  North  Carolina  said: 

"  The  term  of  a  court  is  in  legal  contemiplation  as  one  day;  and  although  it 
may  be  open  many  days,  all  its  acts  refer  to  its  commencement,  with  the 
particular  exceptions  in  which  the  law  may  direct  certain  acts  to  be  done  on 
certain  other  days.  It  is  seldom  necessary  that  the  day  of  any  proceeding 
sho\ild  appear  in  making  up  the  record,  distinct  from  that  of  the  beginning 
of  each  term,  although  a  minute  may  be  kept  of  each  day's  doings.  Nor  is 
it  necessary  that  there  should  be  adjournments  from  day  to  day,  after  the  term 
is  once  opened  by  the  judge;  nor,  if  there  should  be,  that  they  should  be 
recorded,  in  order  to  preserve  the  authority  of  the  court  to  perform  its 
functions.  The  court  may,  in  fact,  not  adjourn  during  the  whole  term,  but 
be  always  open ;  though,  for  the  convenience  of  suitors,  an  hour  of  a  par- 
ticular day,  or  of  the  next  day,  may  be  given  them  for  their  attendance.  If 
the  record  state  the  time  of  doing  an  act,  as  the  statement  is  unnecessary,  so  it 
is  harmless  surplusage,  unless  the  day  be  beyond  the  period  to  which  the 
term  legally  extends."  {State  v.  Martin,  2  Iredell  Law,  1'22.)  In  New  York 
it  is  said  that  a  court  will  be  jsresumed  to  have  continued  open  until  its 
adjournment  is  shown.  {People  v.  Central  City  Bank,  53  Barb.  412.)  Lan- 
guage employed  by  Chief  Justice  "Wallace,  of  California,  in  the  matter  of  the 
application  of  Bennett,  on  habeas  corpus,  at  July  Term,  1872,  goes  far  to- 
ward asserting  that  a  judgment  entered  in  vacation,  without  either  trial, 
argument,  or  submission,  is  valid.  He  said:  "The  principal  objection  made 
for  the  petitioner,  as  we  understand  it,  is,  that  the  cause  here  was  tried  in 
chambers,  and  not  in  open  court— and  it  is  said  that  there  is  no  authority  to 
try  a  cause  except  in  open  court. 

"But  even  if  this  be  so,  we  do  not  see  that  it  would  follow  that  a  judg- 
ment rendered  in  a  cause  which  had  been  tried  at  chambers  would,  for  that 
reason,  necessarily  be  void,  in  the  absolute  sense. 

"The  district  court  unqiiestiouably  had  jurisdiction  of  the  subject  matter 
and  of  the  parties  litigant.  Had  the  court  itself  rendered  the  judgment  in 
question  in  open  session  at  a  regular  term,  without  trial,  without  proof,  and 
even  without  submission  of  the  cause  for  decision,  such  judgiucut,  however 

110 


n22 


1.AW  OF  JUDGMENTS. 


[Chap.  YIII. 


inqniry  will  be  whether  the  court  was  empowered  to  deter- 
mine the  rights  of  the  parties  over  whom  it  has  assumed  to 
act.      The  next  matter  to  be  ascertained  is,  whether  the 
judgment  was  rendered  by  a  coiirt  of  general  or  of  special 
jurisdiction.     There  is  no  well  defined  test  by  which  to  de- 
termine in  all  cases  whether  a  court  belongs  to  the  one  class 
or  to  the  other.     But  all  courts  invested  with  a  general  com- 
mon law  jurisdiction,  in  law  or  in  equity,  are,  when  exercis- 
ing such  jurisdiction,  properly  included  in  the  first  class; 
while  all  such  courts  as  are  erected  upon  such  principles 
that  their  judgments  must  be  disregarded  until  proceedings 
conferring  jurisdiction  are  shown,   belong  to  the  second 
class. ^     These  classes  are  frequently  designated  as  courts  of 
record,  and  courts  not  of  record.     Courts  of  record,  having 
authority  over  the  subject  matter,  are  competent  to  decide 
upon  their  own  jurisdiction,  and  to  exercise  it  to  final  judg- 
ment, without  setting  forth  upon  their  records  the  facts  and 
■evidence  upon  which  their  decision  is  based.     Their  records 
are  absolute  verities  not  to  be  impugned  by  averment  or 
proof  to  the  contrary.^     A  court  may  possess  powers  of  a 
limited  and  subordinate  character,  and  yet  not  be  a  court 
of  special  or  limited  jurisdiction,  in  the  sense  that  it  ought 
to  certify  everything  precisely.^ 

"The  use  of  the  words  'superior'  and  'inferior,'  or  'lim- 
ited' and  'general,'  however  apt  they  may  have  once  been, 
are  less  so  at  this  time  and  place,  and  their  duties,  in  view 


1  Harvey  v.  Tyler,  2  Wall.  328 ; 
Kemple's  Lessee  v.  Kennedy,  5  Crcli., 
185. 

2  Grignon's  Lessee  v.  Astor,  2  How. 
U.  S.  319;  Eex  v.  Carlisle,  2  B.  &  Ad. 


3G7;    Mollins  v.   Werly,   1  Lev.   7(5; 
Bole  V.  Green,  1  Lev.  309;  Bowsse  v. 
Canuiugton,  Cro.  Jac.  2i4. 
3  Peacock  v.  Bill,  1  Saund.  74. 


erroneous,  would  not  be  held  void  ui^ou  a  mere  collateral  attack.  To  main- 
tain th;it  it  would,  would  be  to  ignore  the  obvious  distinction  between  a  total 
want  of  authority  upon  the  one  hand,  and  the  erroneous  exercise  of  the  con- 
ceded authority  uj^on  the  other." 

And,  speaking  of  the  power  to  enter  judgment  in  vacation,  the  judge,  in 
the  same  opinion,  says :  "  It  is  a  power,  too,  which  is  no  more  dependent 
upon  or  affected  by  the  fact  of  trial  had,  or  trial  not  had,  than  if  the  judg- 
ment had  been  entered  in  term  time  bj^  the  court.  The  hearing  cf  proofs, 
the  argument  of  counsel,  in  other  words,  the  trial  had — or  the  absence  of 
any  or  all  these,  neither  confer  jurisdiction  in  the  first  instance,  nor  take  it 
away  after  it  has  once  fully  attached." 

120 


Cliap.  VIII.]  SPECLVL  TOWERS.  ^^22-123 

of  our  system  and  mode  of  procedure,  would  be  better  per- 
formed by  the  terms  'courts  of  record,'  and  'courts  and 
tribunals  not  of  record.'"'  "A  court  of  record  is  tbat 
wliere  the  acts  and  judicial  proceedings  are  enrolled  on 
parchment  for  a  perpetual  memorial  and  testimony,  which 
rolls  are  called  the  records  of  the  court,  and  are  of  such 
high  and  supereminent  authority,  that  their  truth  is  not  to 
be  called  in  question."-  The  Circuit,  District,  and  Terri- 
torial Courts  of  the  United  States  are  courts  of  record,  and 
so  are  the  Orphan's  Courts  in  Pennsylvania,  and  Alabama, 
and  the  Probate  Courts  in  Arkansas  and  California.  Prior 
to  1858  the  Probate  Court  in  the  last  named  State  was  a 
court  of  limited  jurisdiction,  and  its  proceedings  were  re- 
quired to  show  the  facts  conferring  npou  the  court  its 
authority  to  act.-''  The  judgments  of  justices  of  the  peace 
are  favored  with  the  same  presumptions  as  though  they  were 
pronounced  in  courts  of  record,  in  the  States  of  Pennsyl- 
vania,'^ Connecticut, 5  Vermont,"  Tennessee,''  and  Missis- 
sippi. 3 

^  123.  Special  Po-wers. — The  jurisdiction  exercised  by 
courts  of  record,  is,  in  many  cases,  dependent  upon  special 
statutes  conferriug  an  authority  in  derogation  of  the  common 
law,  and  specifying  the  manner  in  which  such  authority 
shall  be  employed.  The  decided  preponderance  of  ad- 
judged cases  upon  the  subject,  establishes  the  rule  that 
judgments  arising  from  the  exercise  of  this  jurisdiction, 
are  to  fee  regarded  in  no  other  light,  and  supported  by  no 
other  presumptions,  than  though  they  originated  in  courts 
not  of  record.  The  particular  state  of  facts  necessary  to 
confer  jurisdiction,  will  not  be  i^resumed;  and  if  such  facts 


^  Hahn  v.  Kcllcy,  3i  Cal.  391. 

23  Steph.  Comm.  583;  3B1.  Comm. 
2i. 

3 Grimes  v.  Norris,  G  Cal.  G21,  C52. 
Haynes  v.  Meeks,  10  Cal.  110. 

i  Billings  V.  Eussell,    23  Peirn.  S. 


189;  Clark  v.  McComman,  7  W.  &  S. 
iG9. 

5 Fox  V.  Hoyt,-12  Conn.  497. 

cWright  i;.  Ilazeu,  2-4  Verm.  143. 

1  Turner  v.  Irelaml,  11  Humpb.  447. 

8 Stevens  v.  Maugum,  27  Miss.  481. 

121 


gl23  LAW  OF  JUDGMENTS.  [Cliap.   YIII. 

do  not  appear,  tbe  judgment  will  be  treated  as  void.'     The 
Supreme  Court  of  the  United  States  has  laid  down  the  rule, 
that  when  a  statute  prescribes   the  manner  in  which  the 
rights  conferred  by  it  are  to  be  pursued,  and  the  powers 
delegated  by  it  are  to  be  exercised  in  a  special  and  summary 
manner,  the  proceedings  of  the  court  will  be  considered  as  of 
the  same  character  as  the  proceedings  of  courts  not  of  record; 
but,  when  the  statute  confers  new  powers  and  rights,  to  be 
brought  into  action  by  the  usual  form  of  common  law  or 
of  chancery  practice,  the  proceedings  and  judgments  of  the 
court  will  have  all  the  characteristics  of  the  proceedings 
and  judgments   of  courts   of  record.'     The   doctrine   that 
the  judgments  of  courts  of  record  are  of  any  less  force,  or 
are  to  be  subjected  to  any  closer  scrutiny,  or  that  they  are 
attended  with  any  less  liberal  presumptions,  when  created 
by  virtue   of  a   special  or  statutory  authority,  than  when 
rendered  in  the  exercise  of  ordinary  jurisdiction,  has  been 
repudiated   in   some   of  the  States  f  and  the  reasons  sus- 
taining this  repudiation  have  been  stated  with  such  clear- 
ness and  force,  as  to  produce  the  conviction  that  the  doctrine 
repudiated  has  no  foundation  in  principle,  however  strongly 
it  may  be  sustained  by  precedent.     In  the  first  place  it  is 
shown  that   the   discrimination  between   courts  of  record 
and  courts  not  of  record,   "  is  founded  upon  considerations 
of  the  wisest  policy,  which  are  obvious  to  all.     Courts  of 
record  are  presided  over  by  men  of  experience  and  learned 
in  the  law,  assisted  by  counsel  also  of  experience  and  learn- 
ing, who,  in  the  discharge  of  their  duties  to  their  plients, 
necessarily  act  as  advisers  of  the  court.     Their  proceedings 
are  conducted  with  solemnity  and  deliberation,  and  in  strict 
conformity  with  established  modes,  with  which  long  ex- 
perience has  made  the  court  and  bar  familiar,  and,  above 
all,  they  are  taken  down  and  made  a  matter  of  record  at  or 


^  Shivers  v.  Wilson,  5  Harr.  and  J. 
130;  Foster  i).  Glazener,  27  Ala.  391  and 
663;  Thatcher  v.  Powell,  G  Wheat. 
119;  Striker  v.  Kelly,  7  Hill.  2i;  Den- 
ning r;.  Corwin,  11  SVend.  G47;  Liul- 
lowu.  Johnson,  3d  Ohio,  553;  Mitchell 
V.  Eunkle,  25  Tex.  Supp.  132;  Adams 
V.   Jeffries,   12    Ohio,  253;    Cone    v. 

122 


Cotton,  2  Blackf.  82;  Earthmau  v. 
Joues,  2Yerg,  493;  Barry  v.  Patter- 
son, 3  Humph.  313;  Wight  u.  Warner, 
1  Doug.  Mich.  384. 

2  Harvey  i'.  Tyler,  2  Wall.  342. 

sPalkner  i'.  Guild,  10  Wis.  572; 
Hahn  u.  Kelly,  34  Cal.  391. 


Chap.  VIII.]  PRESUMPTION.  g§123-124 

about  the  time  they  transpire.  Of  inferior  courts,  as  a 
general  rule,  none  of  these  things  can  be  affirmed."  In  the 
second  place  it  is  shown,  that  none  of  those  reasons  upon 
which  the  discrimination  between  different  courts  rests, 
tends  to  justify  any  discrimination  between  different  pro- 
ceedings conducted  by  the  same  court.  That  whether  a 
court  proceeds  according  to  the  "  course  of  the  common 
law,"  or  according  to  some  authority  conferred  and  some 
course  prescribed  by  a  statute,  it  is,  in  either  case,  presided 
over  by  the  same  judge,  assisted  by  the  same  counsel  and 
officers;  and  conducted  with  the  same  wisdom,  caution  and 
solemnity.  In  either  case,  its  proceedings  are  equally 
matters  of  record,  and  equally  subject  to  fixed  and  well 
understood  laws.  And  finally,  it  is  suggested  that,  as  no 
reason  has  been  given  for  regarding  the  same  tribunal  with 
different  degrees  of  consideration,  according  to  circum- 
stances which  seem  not  to  affect  its  claims  to  our  confidence, 
therefore  all  its  adjudications,  though  arising  out  of  the 
exercise  of  lawful  jurisdiction  conferred  at  different  times, 
or  from  different,  but  equally  competent  sources,  should  be 
subjected  to  similar  rules  and  indulged  with  equal  pre- 
sumptions. ^ 

§  124.     Presumption  in  favor  of  Jurisdiction. — If  it  bo 

ascertained  that  the  judgment  or  decree  under  examination, 
was  rendered  by  a  court  of  record  in  the  exercise  of  its 
ordinary  jurisdiction  over  the  subject  matter  in  litigation, 
the  next  fact  to  be  determined  is,  whether  the  court  had 
jurisdiction  over  the  person  against  whom  the  judgment  has 
been  obtained.  The  preponderance  of  authorities  shows 
that,  in  a  collateral  proceeding,  this  fact  must  be  deter- 
mined by  an  inspection  of  the  matters  contained  in  what  at 
the  time  of  entering  the  judgment,  constituted  the  record 
or  judgment  roll.  Any  other  paper  which  happens  to  be 
on  file  in  the  case  and  improperl}^  attached  to  the  record, 
must  be  disregarded.  The  record,  however,  may  be  silent 
upon  the  subject  of  jurisdiction.  It  may  fail  to  show 
whether  the  proceedings  taken  to  bring  the  defendant  with- 
in the  authority  of  the  court  were  sufficient  or  insufficient; 

1  See  opinion  of  Sanderson,  J.,  in  Ilahn  v.  Kelly,  3A  Cal.  391. 

123 


n2i 


LAW   or  JUDGMENTS. 


[Cliap.  VIII. 


or,  for  auglit  that  appears  by  tlie  judgment  roll,  no  attempt 
may  have  been  made  to  perform  some  act  essential  to  juris- 
diction. "Nothing  shall  be  intended  to  be  out  of  the 
jurisdiction  of  a  superior  court,  but  that  which  expressly 
appears  to  be  so."^  Hence,  though  the  existence  of  any 
jurisdictional  fact  may  not  be  affirmed  upon  the  record,  it 
will  be  presumed  upon  a  collateral  attack,  that  the  court,  if 
of  general  jurisdiction,  has  acted  correctly,  and  with  due 
authority,  and  its  judgment  will  be  as  valid  as  though  every 
fact  necessary  to  jurisdiction  affirmatively  appeared.  The 
decisions  to  this  effect  are  very  numerous.^  If  a  stat- 
ute required  a  certain  affidavit  to  be  filed  prior  to  the 
rendition  of  judgment,  it  will  be  presumed,  in  the  absence 
of  auj-  statement  or  showing  upon  the  subject,  that  such 
affidavit  was  filed. ^  One  acting  in  a  court  of  record  as 
attorney  in  fact  for  a  party,  will  be  presumed  to  have  satis- 
fied the  court  of  his  authority  to  act,  and  the  proceedings 
cannot  be  collaterally  attacked,  because  the  proof  of  such 
authority  does  not  appear  in  the  record.*  A  case  decided 
at  an  early  day  in  New  York,  seemed  to  be  in  opposition  to 
the  current  of  authorities  on  the  subject  of  the  presumptions 
which  attend  the  proceedings  of  courts  of  record  when  called 
in  question  collaterally.'^  The  opinion  in  this  case,  so  far 
as  it  placed  proceedings  of  "superior"  courts  upon  the 
same  footing  with  those  of  •'inferior"  courts,  was  soon  after 
overruled.  ^  A  few  other  cases  are  reported,  which  do  not 
seem  to  be  entirely  consistent  with  the  rule  upon  this  sub- 
ject.'    But  it  was  reserved  to  the  court  deciding  the  case  of 


1  Gossett  u.  Howard,  10  Q.  B.  453. 

2  Withers  v.  Patterson,  27  Tex.  491; 
Holmes  ?;.  Campbell,  12  Minu.  221  ; 
Spaulding  i;.  Baldwin,  31  Ind.  376  ; 
Evans  v.  Aslibj%  22  Ind.  15  ;  Butcher 
V.  Bank  of  Brownsville,  2  Kansas,  70; 
Keynolds  v.  Stansberiy,  20  Ohio,  344; 
Bush  V.  Lindsey,  24  Geo.  245;  Hahn 
V.  Kelly,  34  Cal.  391  ;  Calkins  v. 
Parker,  21  Barb,  275;  Prince  r.Griffin, 
16  Iowa,  552;  Grignon's  Lessee  v.  As- 
ter, 2  How.  U.  S.  319  ;  Cox  v.  Thomas, 
9  Gratt.  323  ;  "Wells  v.  Waterhouse, 
22  Maine,   131  ;  Ely  v.  Fallman,  14 

124 


Wis.  28  ;  Potter u.  Mechanics'  Bank, 
28  N.  Y.  656  ;  Kelsey  v.  Wiley,  10 
Geo.  371;  Skillman  v.  Greenwood,  15 
Minn.  102  ;  Arnold  v.  Nye,  23  Mich. 
286;  Smith  v.  Pomeroy,  2  Dillon,  C. 
C.  414. 

3  Dean  v.  Thatcher,  3  Vroom.  470. 

4  Pillsbury  v.  Dugau,  9  Ohio,  117. 

5  Denning  v.  Corwin,  11  Wend. 
648. 

6  Foot  V.  Stevens,  17  Wend.  483. 

"Clijie  V.  Gibson,  23  lud.  11;  Glide- 
well  V.  Spaugh,  26  Ind.  319;  Gwiu  v. 
McCarroU,  1  S.  &  M.  3-51. 


Chap.  VIIT.]  NO  PEESUMPTION.  §§124-125 

Stcen  V.  Steen,  25  Miss.  513,  to  exhibit  an  extraordiuary 
misconception  of  the  law,  by  the  use  of  the  following  lan- 
guage: "It  is  also  a  fixed  rule  on  this  subject,  that  the  rec- 
ord of  the  judgment  must  show  upon  its  face  that  the  court 
did  have  jurisdiction  of  the  person.  Unless  it  so  ajopears, 
the  judgment  is  a  nullity,  for  it  will  not  be  presumed  that 
the  court  had  jurisdiction  unless  the  record  shows  that  fact." 
The  courts  of  the  States  of  Kansas  and  Missouri  seem  to  be 
following  close  in  the  wake  of  those  of  the  State  of  Missis- 
sippi. In  a  case  in  the  first  named  State,  the  plaintiff's  title 
depended  upon  a  certain  judgment,  sale,  and  sheriff's  deed. 
In  attempting  to  prove  his  title  he  showed  first  that  the 
files  of  the  case  were  all  burned,  and^ext  produced  a  jour- 
nal entry  of  the  judgment.  This  entry  contained  the  state- 
ment that  the  defendant  had  been  duly  served  by  publica- 
tion in  a  newspaper  which  it  specified.  Upon  these  facts 
the  court  determined  that  ' '  until  it  appears  not  merely  that 
the  papers  are  gone,  but  also  that  there  is  no  secondary 
proof  of  their  contents;  there  is  no  presumption,  even  in  fa- 
vor of  a  court  of  general  jurisdiction,  from  the  existence  of 
one  part  of  a  record,  that  the  remainder  would,  if  produced, 
contain  the  facts  necessary  to  give  the  court  jurisdiction."^ 
In  a  very  recent  decision  in  the  State  of  Missouri,  we  find 
the  general  rule  announced  that  "if  the  whole  record  taken 
together  does  not  show  that  the  court  had  jurisdiction  over 
the  defendant,  then  the  judgment  would  be  a  nullity."  ^ 

§  125.  No  Presumption  Against  the  Record.  —  The 
presumption  in  favor  of  proceedings  of  courts  of  record 
are  indulged  only  in  relation  to  those  jurisdictional  matters 
concerning  which  the  judgment  roll  is  silent.  But  no  pre- 
sumptions in  support  of  the  judgment  are  to  be  allowed  in 
opposition  to  any  statement  contained  in  the  record.  If  an 
act  be  stated  in  the  roll  as  having  been  done  in  a  specified 
manner,  no  presumption  arises  that,  at  some  future  time, 
the  act  was  done  in  a  better  or  more  eflicient  manner.  If 
it  appear  that  the  process  was  served  in  a  particular  mode, 
lio  other  and  different  service  can  be  presumed.  To  in- 
dulge such  a  presumption,  would  be  to  contradict  the  rec- 

'  Hargis  v.  Morse,  7  Kau.  417.      [      -  Ho-ward  i'.  Thorntou,  50  SIo.  £91. 

125 


§§125-120 


LAW  OF  JUDGMENTS. 


[Chap.  Viri. 


Orel,  ■u'liicli  imports  absolute  verity.  When,  therefore,  the 
record  shows  that  certain  steps  were  taken  to  procure  juris- 
diction, and  the  law  does  not  consider  those  steps  sufficient, 
the  judgment  will  be  regarded  as  void,  for  want  of  jurisdic- 
tion over  the  defendant.^ 

g  126.     Defects  in  Obtaining  Jurisdiction. — There  is  a 
difference  between  a  want  of  jurisdiction  and  a  defect  in 
obtaining  jurisdiction.     At  common  law  the  defendant  was 
brought  within  the  power  of  the  court  by  service  of  the 
hrevia,  or  original  writ.     In  this  country  the  same  object  is 
accomplished  by  service  of  summons,  either  actual  or  con- 
structive, or  of  some  other  process  issued  in  the  suit;  or  by 
the  voluntary  appearance  of  the  defendant  in  person,  or  by 
his  attorney.     From  the  moment  of  the  service  of  process, 
the  court  has  such  control  over  the  litigants  that  all  its  sub- 
sequent proceedings,  however  erroneous,  are  not  void.     If 
there  is  any  irregularity  in  the  process,  or  in  the  manner 
of  its  service,  the  defendant  must  take  advantage  of  such 
irregularity  by   some  motion  or  proceeding  in  the   court 
where  the  action  is  pending.    The  fact  that  defendant  is  not 
given  all  the  time  allowed  him  by  law  to  plead,  or  that  he 
was  served  by  some  person  incompetent  to  make  a  valid 
service,  or  any  other  fact  connected  with  the  service  of 
process,  on  account  of  which  a  judgment  by  default  would 
be  reversed  upon  appeal,  will  not  ordinarily  make  the  judg- 
ment  vulnerable   to   a   collateral   attack."     In  case   of   an 
attempted  service  of  process,  the  presumption  exists  that 
the  court  considered  and  determined  the  question,  whether 
the  acts  done  were  sufficient  or  insufficient.     If  so,  the  con- 
clusion reached  by  the  court,  being  derived  from  hearing 
and   deliberating  upon   a  matter  which,    by  law,  it  was 


'Clark  V.  Thompson,  47  111.  25; 
Halin  V.  Kelly,  34  Cal.  391. 

^Whitwell  V.  Barbier,  7  Cal.  54; 
Dorente  v.  SuUivan,  7  Cal.  279;  Smith 
V.  Bradley,  G  S.  &  M.  485;  Mooney 
V.  Mass.  22  Iowa,  380;  Peck  v.  Strauss, 
33  Cal.  G78;  Myers  u.  Overton,  1^  Abb. 
P.  344;  Hunter  u.  Lester,  18  How.  P. 
337;  Haughey  v.  "Wilson,  1  Hilton, 
259;  Kcpp  v.  Fullerton,  4  Minn.  473; 

12G 


Colo  V.  Butler,  43  Maine,  401;  Hen- 
clrick  V.  "Whittemore,  105  Mass.  23; 
Drake  v.  Duvenick,  5  Pac.  Law  Kep. 
28.  "  A  distinction  is  to  be  made  be- 
tween a  case  where  there  is  no  service 
whatever,  and  one  which  is  simply 
defective  or  irregular.  In  the  first  case, 
the  court  acquires  no  jurisdiction, 
and  its  judgment  is  void;  in  the  other 
case,  if  the  court  to  v.-liiuh  the  i^roccss 


Chap.  VIII.]  CONSTRUCTrV^E  SERVICE. 


;212G-127 


authorized  to  hear  and  decide,  though  erroneous,  can  not 
be  void.  When,  in  a  proceeding  by  attachment,  the  ground 
required  by  the  statute  for  the  issuing  and  execution  of  the 
process  has  been  laid,  and  the  process  has  been  issued  and 
executed,  the  jurisdiction  of  the  court  is  complete.  If  the 
subsequent  proceedings  do  not  conform  to  law,  the  judg- 
ment may  be  reversed.  When  there  has  been  an  insufiicient 
publication,  or  an  entire  failure  to  publish,  the  proceedings 
are  not  so  invalidated  as  to  be  made  void.^  A  service  of 
process  defective  in  giving  four  days  notice,  when  the  law 
required  five  days  notice,  is  nevertheless  sufficient  to  sup- 
port the  judgment  of  a  justice  of  the  j)eace.^  But  the  pro- 
cess may  be  so  defective  as  to  be  in  substance  no  process, 
as  when  it  does  not  state  the  place  or  time  where  and  when 
the  defendant  is  required  to  appear  and  make  his  defense. 
In  such  case  it  has  been  held  that  no  jurisdiction  had  been 
obtained  over  the  person  of  the  defendant,  and  that  the 
judgment  had  no  validity  against  him.^  The  same  conclu- 
sion was  announced  where  the  officer  serving  the  process 
was  the  plaintiff  in  the  suit.  * 

§  127.  Constructive  Service. — In  most  of  the  decisions 
upon  the  subiect,  statutes  authorizing  the  service  of  process 
by  publication,  have  been  construed  as  in  opposition  to  the 
course  of  proceedings  at  common  law;  and  a  strict  compli- 


1  Paine's  Lessee  v.  Moi-eland,  15 
Ohio,  435;  Beech  v.  Abbott,  6  Verm. 
5SG;  Matter  v.  Clark,  3  Denio,  167; 
Williams  v.  Stewart,  3  Wis.  773; 
Drake  on  Atta.  ^  447-448. 


sBallinger  v.  Tarbcll,  10  Iowa,  492. 
sKitsmiller   v.  Kitchen,    24  Iowa, 
163. 

iKnotti).  Jarboe,   1  Met.  Ky.  505. 


is  returnable,  adjudges  the  service  to 
be  sufficient,  and  renders  judgment 
thereon,  such  judgment  is  not  void, 
but  only  subject  to  be  set  aside  by  the 
court  which  gave  it,  upon  seasonable 
and  proper  application,  or  reversed 
upon  appeal."  Isaacs  u. Price,  2  Dil- 
lon C.  C.  351.  A  judgment  is  not  void 
because  rendered  before  or  after  the 
return  day  named  in  the  summons. 
It  is  only  liable  to  be  vacated  for 
iiTegularity.  Glover  v.  Holman,  3 
Heisk,   519;   West  v.  Williamson,    1 


Swan,  277.  The  rule  that  defective 
service  of  process  docs  not  render  the 
judgment  liable  to  successful  collateral 
attack,  has  been  frequently  enforced 
in  Mississippi,  a  State  in  which  the 
courts  have,  iu  other  respects,  been 
loth  to  accord  any  favors  to  records 
suffering  from  symptoms  of  jurisdic- 
tional infirmity.  Christian  r.  O'Neal, 
46  Miss.  6G9;  Han-ington  r.  Wofford, 
46  Miss.  31;  Campbell  v.  Hays,  41 
Miss.  561. 

127 


§127  LAW  OF  JUDGMENTS.  [Chap.  YIII. 

ance  witli  all  the  material  directions  of  the  statutes,  has 
bfeen  required  to  appear  upon  the  face  of  the  record  in  order 
to  impart  validity  to  the  judgment.'    A  publication  made  in 
the  absence  of  any  law  authorizing  it,  is  the  same  in  effect  as 
no  publication.    A  judgment  based  upon  it  is  void.^    "The 
general  presumption  indulged  in  support  of  the  judgments 
and  decrees  of  the  superior  courts  is,  however,  limited  to 
jurisdiction  over  persons  within   their  territorial  limits — 
persons  wdio  can  be  reached  by  their  process — and  also  over 
proceedings  which  are  in  accordance  with  the  course  of  the 
common  law.     Whenever  it  appears,  either  from  inspection 
of  the  record  or  by  evidence  outside  of  the  record,  that  the 
defendants  were,   at  the  time  of  the  alleged  service  upon 
them,  beyond  the  reach  of  the  process  of  the  court,  the 
presumption  ceases,    and   the   burden  of  establishing  the 
jurisdiction  over  them  is  thrown  upon  the  party  who  invokes 
the  benefit  or  protection  of  its  judgments  and  decrees.    So 
too,  the  presumption  ceases  when  the  proceedings  are  not 
in  accordance  with  the  course  of  common  law."^    Construc- 
tive service  by  publication  in  a  case  where  the  defendants 
are  beyond  the  territorial  limits  of  the  court  by  virtue  of 
an  order  made  and  enforced  by  the  military  authorities  in 
time  of  war,  and  are  not  allowed  to  return,  is  a  mere  idle 
ceremony.    It  can,  by  no  possibility,  afford  to  defendants  an 
opportunity  of  making  a  complete  defense,  or  of  appearing 
in  court  and  attending  to  their  interests.    A  judgment  based 
upon  it  is  void.'*     But  a  party  who  voluntarily  entered  the 
Confederate  lines  to  engage  in  hostilities  against  the  United 
States;  and  who,  on  that  account,  is  not  able  to  return,  can 
not  urge  a  condition  of  facts  resulting  from  his  own  wrong, 
as  a  valid  objection  to  proceedings  against  him  as  an  ab- 
sentee.^    But,  in  quite  a  number  of  cases,  the  same  pre- 
sumptions have  been  applied  to  judgments  based  upon  con- 
structive service  as  to  those  based  upon  actual  service.  The 
position  is  taken  that  presumptions  of  regularity  are  applica- 


1  Hallet  I'.  EigUers.  13  How,  P. 
43;  Boyland  v.  Boylantl,  IS  111.  552; 
Brownfield  v.  Dyer,  7  Busli,  5C).j. 

sHollingsworth  i\  Barbuur,  -1  Pet. 
4:GC;  Shields  v.  Miller,  9  Kau.  ^dO. 
128 


3  Judge  Field,  in  Gray  u.  Larrimore, 
2  Abb.  U.  S.  542. 

4Dean  v.  Nelson,  10  Wall.  158. 

5 Ludlow  i\  Eamsey,  II  Wall.  581; 
Foreman  v.  Carter,  U  Kan.  C8I. 


Cliap.  VIII.]         APPEAEAXCE  BY  ATTORNEY.  *      §^27-128 

ble  to  the  proceedings  of  courts  of  record,  not  because  of  the 
particular  means  which  those  tribunals  happen  to  employ, 
under  the  authority  of  the  law,  for  the  purpose  of  acquiring 
jurisdiction  over  the  defendant  ;  but  because  of  the  high 
character  of  the  courts  themselves  ;  and  that  this  character 
is  essentially  the  same  in  all  cases,  irrespective  of  the 
methods  employed  in  the  execution  of  process.  Therefore, 
the  fact  that  the  affidavit  required  by  law  to  precede  and 
authorize  the  order  for  publication,  does  not  appear  from 
the  record,  will  not  make  the  judgment  vulnerable  to  col- 
lateral attack.  ^  Constructive  service,  though  not  employed 
in  the  manner  now  generally  authorized  by  statute,  was 
nevertheless  well  known  to  the  common  law,  and  to  the 
chancery  practice  at  an  early  period.  It  is,  therefore,  "  a 
proceeding  according  to-the  course  of  common  law."^ 

g  128.  Appearance  by  Attorney. — By  the  ancient  prac- 
tice, the  litigants  appeared  in  person,  and  were  not  author- 
ized to  appear  by  attorney  without  special  authority  from 
the  crown.  At  a  later  day,  the  right  to  appear  by  attorney 
was  recognized  by  various  statutes.  Under  these,  the  at- 
torney was  at  first  appointed  orally  in  court.  Subsequently, 
lie  was  required  to  have  his  authority  to  act  reduced  to  writ- 
ing and  filed  in  the  court.  The  rules  have  been  gradually 
relaxed  until  now,  when  it  is  presumed,  in  all  collateral 
proceedings,  that  an  attorney  who  has  appeared  for  a  liti- 
gant, without  service  of  process,  had  authority  to  act  for 
the  person  w^hom  he  assumed  to  represent.  ^  This  presump- 
tion is,  in  a  collateral  proceeding,  not  merely  prima  facie, 
it  is  conclusive  ;  and  the  party  whose  appearance  appears  to 
have  been  made  by  an  attorney,  will  not  be  permitted  to 
prove  that  he  never  authorized  the  attorney  to  represent 
him.^     Other  decisions,  however,  indicate  that  the  authority 


1  Nash  V.  Church,  10  Wis.  312  ; 
Lawler's  Heirs  v.  White,  27  Tex. 
250  ;  Gemmell  v.  Kice,  13  Minn.  400. 

2  3  Bla.  Comm.  pp.  283,  444. 

3  Hahn  v.  Kelly,  34  Cal.  417. 
4:Harshey  v.  Blackmarr,  20  Iowa, 

IGl  ;  Arnold  v.  Nye,  23  Mich.  286. 
5  Field  r.  Gibbs,   1  Pet.  C.  C.    155; 

(9)  129 


Baker*!'.  Stonebraker's  Adm.,  3l  Mo. 
175;  Eeed  i'.  Pratt,  2  Hill,  64;  Hof- 
miro  V.  Hofmire,  3  Ed.  Ch.  171;  Am. 
Ins.  Oo.  V.  Oakley,  9  Pai.  496;  Car- 
peutier  v.  Oakland,  30  Cal.  439;  Ham- 
ilton V.  Wright,  37  N.  Y.  502;  Brown 
V.  Nichols.  42  N.  Y.  26. 


§gl2S-129  LAW   OF   JUDGMENTS.  [Cliap.  YIII. 

of  the  attorney  can  always  be  disputed.^  But,  even  where 
the  authority  of  the  attorney  to  appear  is,  after  judgment, 
an  open  question,  and  the  judgment  is  liable  to  be  treated 
as  a  nullity,  upon  showing  that  the  attorney  acted  without 
authority,  the  judgment  may  be  validated  by  a  subsequent 
recognition  of  the  attorney's  acts,  such,  for  instance,  as 
paying  him  for  his  services  in  the  action  in  which  the  judg- 
ment was  entered.^  Where  a  warrant  of  attorney  has  been 
given  to  confess  judgment,  and  the  plaintiff  engages  an 
attorney  to  act  under  such  warrant,  the  case  is  very  differ- 
ent from  that  of  an  ordinary  appearance.  If  the  warrant 
be  insufficient,  the  defendant  is  not  bound  by  the  judg- 
ment.^ 

§  129.     Default. — The  record  may  show  that  the  judg- 
ment was  entered  by  the  clerk,   upon  the  default  of  the 
defendant.  The  clerk  has  no  judicial  functions.  The  statute 
directs  the  judgment.     The  clerk  acts  as  the  agent  of  the 
statute,  in  writing  out  and  filing  its  judgment  among  the 
records  of  the  court.     If  the  law  did  not  authorize  its  agent 
to  act,  the  judgment  is  without  any  authority  and  is  there- 
fore void.     Thus,  where  several  defendants  were  sued  upon 
a  joint  liability,  and  a  portion  summoned  to   answer  the 
complaint,  the  clerk,  not  being  so  authorized  by  law,  en- 
tered judgment  by  default  against  those  who  were  sum- 
moned and  in  default,  the  judgment   was  declared  to  be 
void.  *     Judgment  for  costs  entered  by  the  clerk  in  the  ab- 
sence of  a  cost  bill  is  also  void.''     A  judgment  by  default 
entered  wdthin  the  time  prescribed  for  the  defendant  to  ap- 
pear in  a  justice's  court,  is  void  in  Missouri.*'     The  service 
of  notice  of  a  motion  to  dissolve  an  attachment  on  account 
of  irregularity,  made  by  the  defendant's   attorney,  is  not 
such  an  appearance  as  will  support  a  judgment  by  default.'' 
If,  however,   in  a  case  where  the  authority  of  a  clerk  to 


1  Hess  V.  Cole,  3  Zabr.  125;  Shum- 
way  v.  Stlllman,  G  Wend.  453;  Sliel- 
ton  V.  Triffin,  G  How.  U.  S.  1G3. 

2  Ryan  v.  Doyle,  31  Iowa.  53. 

s  M.  &  M.  Bank  v.  Boyd,  3  Denio, 
257;  M.  &.  M.  Banks  v.  St.  John,  5 
Hill,  497. 

130 


4  Kelly  V.  Van  Austin,  17  Cal.  564. 
CChapin  v.  Broder,  IG  Cal.  403. 
0 Howard   v.    Clark,   43    Mo.    344; 
Williams  v.  Bowen,  2G  Mo.  001. 
TGlidden  v.  Packard,  28  Cal.  G49. 


Chap,    yill.]'        FINDINGS  OF  JUEISDICTION.  g§  129-130 

enter,  judgment  is  undoubted,  he  err  in  the  performance  of 
his  duty,  as  by  making  the  entry  for  too  large  a  sum,  liis 
action  is  not  void,  but  only  erroneous  } 

§130.  Findings  of  Jurisdiction. — It  may  happen,  when 
that  part  of  the  record  containing  the  evidence  of  service 
shows  an  insufficient  service,  that  other  parts  of  the  record, 
and  especially  the  judgment,  disclose  the  fact  that  the  mat- 
ter of  jurisdiction  has  been  considered  and  determined  by 
the  court.  The  conclusion  or  finding  upon  this  subject  may 
appear  by  recitals  stating  that  defendant  has  been  cited  to 
appear,  or  that  he  has  entered  his  appearance,  or  that  his 
default  for  not  appearing  has  been  duly  entered.  These 
findings  are  as  conclusive  upon  the  parties,  in  all  collateral 
proceedings,  as  any  adjudication  of  the  court  can  be.  It 
must  be  presumed  that  they  were  supported  by  sufficient 
testimony,  not  set  forth  in  the  record.  Thus,  though  the 
return  upon  a  summons  against  A.  B.  certifies  a- service  of 
such  summons  upon  CD.,  and  the  judgment  states  that  A. 
B.  has  been  summoned,  the  record  is  not  necessarily  con- 
tradictory. The  error  in  the  service  of  process  may  have 
been  corrected  by  service  of  the  summons  on  the  proper 
person.  And,  since  the  statement  to  this  effect  is  made  by 
the  court,  it  will  be  conclusively  presumed  •  that  it  acted 
upon  ample  evidence  and  with  due  deliberation  before  mak- 
ing such  statement;  and  the  judgment  will  be  impregnable 
to  any  collateral  assault.^  The  same  rules  and  presump- 
tions attach  to  proceedings  in  a  court  of  gener.'il  jurisdic- 
tion in  California  to  enforce  the  payment  of  taxes,  as  to 
proceedings  in  any  other  class  of  actions.  A  recital  in  the 
decree,  "that  all  ov»-ners  and  claimants  of  the  propertv 
above  described  have  been  duly  summoned  to  answer  the 
complaint  herein,  and  have  made  default  in  that  behalf,"  is 
sufficient  to  bind  all  claimants  of  the  property  in  suit.  The 
fact  that  the  summons,  as  served  by  publication,  omitted 
the  name  of  one  of  the  defendants,  to  whom  the  property 
was  assessed,  is  not  fatal  to  the  decree ;  because,  from  the 


1  Bond  V.  Pacheco,  30  Cal.  530. 
2Hahn  v.  Kelly,  34  Cal.  391;    Qui- 
vey  V.  Baker,  37  Cal.  463  ;   McCanley 


V.  Fulton,  4  Pac.  L.  Eep.  170  ;    44 
CaL  355. 

ICl 


§§130-131  LAW   OF  JUDGMENTS.  [Chap.  VIII. 

above  recital,  it  must  be  presumed  that  the  court  had  sufS- 
cient  proof  of  the  service  of  such  defendant,  though  it  does 
not  appear  in  the  judgment  rolL^ 

§131.     Jurisdictional  Inquiries,  Confined  '-'to  the  Rec- 
ord."— We  have  hitherto  assumed  that  the  question  of  llio 
jurisdiction  of  a  court  of  record   over  the  parties  to  any 
domestic  judgment  must,  in  all  collateral  proceedings,  be 
determined  by  the  record;  and  that  the  answer  to  this  ques- 
tion is  not,   except  in  some  direct  proceeding   instituted 
against  the  judgment,   to  be  sought  from  any   extraneous 
proof.     This  doctrine  seems  to  be  the  natural  and  imavoid- 
able  result  of  that  stamp  of  authenticity  which,  from  the 
earliest  times,  was  placed  upon  the  "record,"  and  which 
gave  it  such  ' '  uncontrollable  credit  and  verity  that  no  plea, 
proof  or  averment  could  be  heard  to  the  contrary."     Pro- 
ceeding undoubtedly  from  the  reliance  which,  in  the  primi- 
tive stages  of  practice,  was  placed  on  the  official  memorials 
of  the  proceedings  of  courts,  and  supported  by  the  rule, 
that  the  best  evidence  ought  always  to  be  heard,  to  the 
exclusion  of  all  inferior  evidence,  this  doctrine  has  received 
the  endorsement  of  the  courts  of  last  resort  in  more  than  a 
majority  of  the  States  of  this  Union.     The  principles  on 
which  it  rests,  are  clearly  and  ably  stated  by  Gholsoji,  J., 
in  Callen  v.  Ellizon  (13  Ohio  S.  p.  44G),  in  the  following  lan- 
guage: "When  process  is  instituted — when,  on  a  demand 
for  it  in  the  prescribed  mode,  the  process  of  the  court  is 
issued — the  steps  taken  under  that  process  must  be  matter 
proper  for  the  consideration  of  the  court.     The  court  must 
determine  whether  the  suit  is  prosecuted — whether  the  de- 
mand for  the  thing  to  which  a  right  is  asserted  is  continued. 
So,  if  it  be  claimed  that  process  has  been  Avaived,  the  fact 
of  waiver,  or  the  authority  to  waive,  as  shown  by  the  evi- 
dence, must  be  decided  by  the  court.     This  determination 
or  decision  may  be  express  on  the  very  point,    as  by  an 
assertion  on  the  record,  that  the  process  has  been  served, 
or  that  the  party  has  appeared  by  an  attorney,  or  it  may  be 
necessarily  implied  in  the  action  of  the  court  upon  the  de- 
mand of  the  party.     The  determination  or  decision,  that  a 

'  Eeily  v.  Lancaster,  39  Cal.  354. 

132 


Cliap.  YIII.]  JURISDICTIONAL   INQUIRIES.  §131 

party  has  been  served  with  process,  or  that  he  has  given 
authority  to  waive  process,  if  in  truth  he  has  not  been 
served,  or  given  such  authority,  is  a  determination  or  de- 
cision, when  he  has  no  opportunity  to  be  heard.  Hence, 
the  right  to  show  in  opposition  to  the  record  of  such  deter- 
mination or  decision,  the  truth  by  evidence  has  been 
claimed,  as  required  by  the  principles  of  natural  justice. 

' '  If  the  court  acts  at  all  upon  the  question  \vhether  a  party 
has  been  served  with  process,  or  has  authorized  an  appear- 
ance in  the  absence  of  such  party,  then  the  decision  must 
be  made  at  the  risk  of  an  incorrect  conclusion.  And  it 
would  be  absurd  to  require  notice  of  such  inquiry,  as  that 
would  involve  a  similar  inquiry,  whether  there  were  notice 
of  that  notice.  The  court  must  act  upon  the  demand  for 
which  process  has  been  instituted,  either  with  or  without 
inquiry  into  the  fact  whether  such  process  had  been  served. 
That  there  should  be  no  inquiry,  that  a  judgment  by  de- 
fault should  be  rendered  without  inquiry  into  the  fact 
whether  the  process  has  been  served  on  the  defendant, 
cannot  with  any  propriety  be  claimed.  If  then,  the  iuquiry 
should  be  made,  what  eifect  is  to  be  given  to  the  deter- 
mination or  decision  ?  Is  it  obligatory,  unless  impeached 
or  set  aside  in  the  mode  prescribed  as  to  other  decisions  of 
the  court,  or  may  it  be  disregarded  as  null  and  void,  when- 
ever brought  in  question,  upon  allegation  and  proof  that 
the  party  in  truth  had  no  notice  or  opportunity  to  be  heard  ? 
Here  arises  a  conflict  between  principles  of  policy,  which 
require  the  former  conclusion,  and  principles  of  natural 
justice,  which  lead  to  the  latter;  and,  as  might  be  expected 
in  cases  of  such  conflict,  the  decisions  of  courts  have 
differed. 

"As  to  the  judgments  of  courts  of  general  jurisdiction, 
the  decisions  in  this  State,  though  perhaps  not  entirely 
uniform  or  consistent,  do  undoubtedly  show  a  strong  in- 
clination to  sustain  such  judgments  against  indirect  or  col- 
lateral attacks  on  their  validity  and  effect.  It  appears  to 
have  been  thought  that  natural  justice  is  satisfied,  when 
notice  is  required,  and  an  impartial  tribunal  established  to 
ascertain  and  determine  whether  it  has  been  given.  Nor 
can  it  be  properly  said  that  such  a  tribunal  has  jurisdiction, 

133 


gl31  LAW   OF  JUDGMENTS,  [Chap.    VIII. 

because  it  has  so  decided.  Its  decision  is  hiudiug,  because 
it  was  authorized  to  make  it,  aud  because  public  policy  and 
the  respect  due  to  the  sovereignty  it  represents,  at  least  in 
tribunals  acting  under  the  same  sovereignty,  requires  that 
the  decision  should  be  regarded,  while  it  remains  on  the 
record  unimpeached  and  unreversed. 

"In  the  case  of  Lessee  ofFowler\.  Whlteman  (2  Ohio  State, 
270),  it  is  said  to  have   'become  established  by  a  series  of 
decisions  in  Ohio,  that  the  finding  of  a  court  of  general 
jurisdiction  upon  a  subject  matter  properly  before  it  cannot 
be  impeached.'     The  finding  in  that  and  the  previous  cases 
there  referred  to,  was  upon  the  question  of  notice."     In  this 
case  from  which  this  quotation  is  made,  the  records  stated 
that  "  defendants  by  George  Collins,  Esq.,  their  attorney, 
come  into  court,   and  by  virtue  of  his  pov/er  of  attorney 
filed  in  this  court,  confessed  judgment  for  the  defendant," 
etc.     It   was  claimed   that   the   power   of   attorney   found 
among  the  records,  did  not  appear  to  be  executed  by  some 
of  the  defendants,  and  that  other  of  the  defendants  were 
married  Avomeu,   incapable  of  executing  such  power.     But 
the  court  held  that  this  power,  though  found  among  the 
papers  in  the  case,  was   no  part  of  the  record.     That   the 
object  of  filing  the  power  was  not  to  furnish  means  to  render 
the  judgment  void,    "but  to  furnish  the  parties  affected  by 
the  judgment  ready  means  to  apply  to  the  court  itself  to 
correct  any  irregularity  or  error,"  and  that  no  such  applica- 
tion having  been  made,  the  judgment  must  be  regarded  as 
valid. 

The  rule  that  evidence  will  not  be  heard  in  a  collateral 
proceeding,  for  the  purpose  of  avoiding  a  judgment,  is  thus 
defended  in  the  case  of  Colt  v.  Haven  (30  Conn.  p.  199)  : 
"  But  the  counsel  for  the  defendants  urge  the  extreme 
hardship  to  which  a  party  may  be  subjected,  if  he  may  not 
deny  and  disprove  the  service  of  the  writ,  when  he  can 
clearly  show  that  in  fact  no  service  was  ever  made  on  him, 
and  that  he  never  had  notice  of  the  suit  in  any  form,  and 
never  heard  of  the  judgment  against  him  until  it  was  made 
the  ground  of  an  action.  They  say,  with  great  emphasis, 
and  the  argument  is  certainly  a  forcible  one,  can  it  bo  that 
a  clerk  of  a  court  may  fabricate  a  record,  or  an  ofiicer  make 
134 


Cliap.    YI.]  JURISDICTIONAL   IXQUIKIES.  .  ^131 

a  false  return  of  service,  and  yet  tliero  be  no  escape  for  one 
^\-lio  is  thus  by  a  judgment  in  tlie  suit  made  heavily  in- 
debted, or  found  guilty  of  a  wrong,  when  in  fact  he  is  per- 
fectly innocent,  or  never  owed  the  debt,  and  could  show  it 
clearly  if  he  had  a  chance  ?  Will  a  court,  they  ask,  because 
it  has  a  general  jurisdiction,  protect  and  give  effect  to  such 
a  fraud  ? 

"It  will  not  be   claimed,  and  has  not  been  on  the  argu- 
ment, that  when  a  court  has  jurisdiction,  its  record  speaks 
absolute  verity,    because   it  is   the   record   of  the  court's 
doings  ;  and  being  a  court  of  final  jurisdiction,  there  must 
be  an  end  to  the  matter  in  dispute,  if  it  be  possible  to 
reach  that  end  at  all.    And  it  is  so  necessary  that  confidence 
should  be  reposed  in  courts  of  a  high  character,  as  well  as 
in  the  records  of  such  courts,  that  on   the  whole,  and  in 
view  of  all  the  considerations  affecting  the  subject,  it  is  the 
only  safe  rule  to  give  the  decisions  of  courts  of  general 
jurisdiction  full  effect  so   long  as  they   remain   in   force, 
rather  than  to  leave  them  open  to  be  attacked  in  every  way 
and   on   all   occasions.     Being   domestic   judgments,    they 
can,  if  erroneous,   be  reviewed  by  proceedings  instituted 
directly  for  that  purpose  and  reversed  on  error,   or  by  a 
new  trial  ;  and,    if   the  danger   is   imminent  and   special, 
relief  can  be  temporarily,  if  not  finally  obtained  by  appli- 
cation to  a  court  of  equity.     Any  other  rule  with  regard  to 
judgments  of  such  courts  would  be  attended  in  its  applica- 
tion with  very  great  embarrassment,    and  would  be   very 
dangerous  in   its   general   operation.       The   general  good 
clearly  requires,  and  has  therefore  established  the  rule  that 
domestic  judgments  of  courts  of  general  jurisdiction  can 
not  be  attacked  collaterally." 

If  the  record  of  a  domestic  court  of  general  jurisdiction 
declare  notice  to  have  been  given,  such  declaration  can  not 
be  contradicted  by  plea  or  proof,  because,  for  reasons  of 
public  policy,  the  records  of  such  courts  are  presumed  to 
speak  the  truth,  and  can  be  tried  only  by  inspection.'      "It 


1  Selin  V.  Snyder,  7  S.  &  11.  IGG  ; 
Fan-  V.  Ladd,  07  Verm.  15G  ;  Eastman 
V.  Waterman,  2G  Verm.49i  ;  Lyles  r. 
Hobinson,  1  Bail.  25  ;  Aultman  v. 
McLean,  27  Iowa,  129  ;  Penobscot  E. 


K.  Co.  V.  Weeks,  52  Maine,  518 
Hotcbkiss  r.  Cutting,  11  Minn.  537 
Morgan  v.  Burnett,  18  Obio,  535 
Segee  v.  Tbomas,  3  Bltcbf.   C.  C.  11 

135 


§gl31-132  LAW   OF  JUDGMENTS.  [CIlMl).    VIIl. 

is  not  to  be  denied  that  a  court  of  superior  jurisdiction  may 
so  make  a  record  in  a  case  where,  in  fact,  it  has  no  juris- 
diction, that  the  validity  of  the  judgment  cannot  be  ques- 
tioned collaterally."^  The  fact  of  jurisdiction  appearing  on 
the  record,  it  can  not  be  controverted.  Any  otlier  matter 
determined  by  the  court  might  as  well  bo  disputed  as  this." 

g  132.     Silence  of  the  Record. — A  large  proportion  of  the 
decisions  denying  the  right  to  collaterally  impeach  a  judg- 
ment or  decree,  for  want  of  jurisdiction  over  the  party  against 
whom  the  determination  has  been  made,  have  been  pro- 
nounced where  the  service  of  process  appears  distiuctl;^  or 
by  necessary  implication  upon  the  record.     But   "it  is  a 
matter  of  no  consequence  whether  the  jurisdiction  of  the 
court  affirmatively  appears  upon  the  judgment  roll  or  not, 
for  if  it  does  not  it  Avill  be  conclusively  presumed."''    In  a 
recent  case  it  is  said:  "We  concur  fully  in  the  doctrine  of 
the  numerous  cases  cited  for  plaintiff,  where  it  is  held  that 
a  domestic  judgment  of  a  court  of  record  of  general  juris- 
diction, proceeding  according  to  the  course  of  the  common 
law,  cannot  be  impeached  by  the  parties  to  it,  where  a  want 
of  jurisdiction  is  not  apparent  upon  the  record,  while  it  re- 
mains neither  annulled  nor  reversed." *     It  is  a  familiar  prin- 
ciple that  the  judgment  or  decree  of  a  court  of  general  juris- 
diction can  not  be  collaterally  questioned,  except  for  want 
of  authority  over  the  matter  adjudicated  iipon.^     Fraud  in 
procuring  a  judgment  caA.  not  be  shown  by  the  parties  to 


1  Dequindre  v.  'Williams,  31  Ind. 
4M. 

3  "Westerwelt  v.  Lewis,  2  McL.  511; 
Riley  v.  Waugh,  8  Cush.  220;  State  v. 
Borden,  G  Eng.  519;  Delaney  u.  Gault, 
6  Casey,  G3  ;  Galpin  v.  Page,  1  Saw. 
C.  C.  318;  Miller  v.  Ewing,  8  S.  &  M. 
421  ;  Wright  v.  Weisinger,  5  S.  &  M. 
210;  Paggsi;.  Collins,  2  Bissell,  C.  C. 
2G8;  Peyroux  u.  Peyroux,  21  La.  An. 
175;  McCreeryv.  Forston,  35Tex.  G41. 

3  Sharp  11.  Brunnings,  35  Cal.  528; 
Mitchell  V.  Jlenley,  32  Tex.  4G0;  Ilahn 

136 


V.  Kelly,  34  Cal.  391;  Lawler's  Heirs 
V.  White,  27  Tex.  250;  Coit  v.  Haven, 
30  Conn.  190. 

4Prattu.  Dow,  56  Maine,  81;  Gran- 
ger t'.  Clark,  22  Maine,  128. 

sYaple  V.  Titus,  41  Penn.  S.  202; 
Shawhanr.  Loflfer,  24  Iowa,  217;  Cook 
V.  Darling,- 18  Pick.  393;  Stephenson 
V.  Newcomb,  5  Harring,  150;  Crafts  o. 
Dexter,  8  Ala.  7G7 ;  Cox  v.  Thomas' 
Admr.,  9  Gratt.  323;  Finneranr.  Leon- 
ard, 7  Allen,  54;  Blythc  v.  llichards, 
10  S.  &  K.  2G0. 


§§132-133         CASES  ADMITTING  PAROL  EVIDENCE.   [Cluip.  YIII. 

such  judgment,  in  any  collateral  proceeding.^  An  offer 
being  made  to  prove  that  the  defendant,  at  the  time  of  enter- 
ing judgment,  was  but  two  years  old,  and  that  no  service 
of  process  had  been  made  upon  him,  the  court  said:  "The 
record  in  this  case  is  not  silent.  It  recites  that  due  notice 
had  been  given.  This  is  a  finding  of  the  court;  and  being 
shown  by  a  record  importing  absolute  verity,  can  not  be 
contradicted."^  An  action  was  commenced  against  a  person 
upon  judgment  rendered  for  costs  of  suit,  in  a  case  wherein 
he  was  plaintiff.  He  offered  to  prove  that  he  did  not  author- 
ize the  act  of  the  attorney  who  instituted  the  former  suit.  It 
was  held  that  while  the  judgment  remained  of  record  he  was 
bound  by  it,  and  could  only  be  relieved  by  some  direct 
application.^ 

§  133.  Cases  Admitting  Parol  Evidence. — Many  courts, 
however,  have  been  deeply  impressed  by  the  apparent  vio- 
lation of  natural  justice,  involved  in  condemning  a  party 
who  has  had  no  opportunity  of  presenting  his  defense — no 
notice  that  any  of  his  rights  or  interests  were  in  jeopardy. 
Yielding,  through  a  tenderness  for  the  special  and  unavoid- 
able injustice  occasionally  done  to  litigants,  they  have,  in 
a  measure,  overlooked  the  interest  of  the  community  as  a 
whole;  and  rather  than  sacrifice  the  individual  for  the  safety 
of  the  community,  they  have  jeopardized  the  best  interests 
of  the  community  to  secure  the  safety  of  the  individual. 
To  the  end  that  each  citizen  may  feel  assured  that  no  injury 
can  be  done  him  in  the  courts  without  his  notice,  actual  or 
constructive,  they  have  impaired  public  confidence  in  judi- 
cial authority;  they  have  made  the  title  to  a  large  class 
of  property  precarious  and  unstable,  by  taking  away  the 
uncontrollable  verity  of  the  record,  and  substituting  for  it 
the  interminable  uncertainties  of  parol  evidence;  and  instead 
of  allowing  parties  who  have  acquired  title  at  judicial  sales, 
to  rest  secure  in  the  presumption  that  courts  of  record 
always  "act  by  right,"  those  parties  have  been  required, 
often  without  notice  of  the  intended  attack,  to  defend  pro- 


1  Carpentieru.  Oakland,  30Cal.  439; 
Smith  V.  Smith,  22  Iowa,  516;  People 
V.  Downing,  4  Sanf.  189. 


2  Richards  v.  Kil-f,  8  Ohio  S.  586, 

3  Ward  V.  Barber,  1  E.  D.  Smith, 
423;  St.  Albans  v.  Bush,  4  Verm.  58; 
Finneran  v.  Leonard,  7  Allen,  54. 

137 


p33  LAW   OF  JUDGMENTS.  [Chap.  YIII. 

ceodings,   occurring  many  years  previous,  and  apparently 
free  from  vice  or  infirmitj'. 

The  principles  wliicli  it  is  thought  are  sufficient  to  sup- 
port the  practice  of  leaving  the  question  of  jurisdiction  over 
the  parties  always  open  to  dispute  on  collateral  proceedings, 
are  that  the  high  and  uncontrollable  verity  of  the  record 
never  attaches  until  the  court  has  obtained  jurisdiction  of 
the   person  of   the   defendant,    as  well   as  of   the   subject 
matter  of  the  action;  that  in  the  absence  of  the  fact  of  juris- 
diction over   the  parties,  there  is  no  power  competent  to 
make  a  record;  that  the  thuKj  offered  as  a  record  may  be 
nothing  but  an  unauthorized  paper,  that  the  law  contem- 
plates, upon  reasons  of  natural  justice,  that  no  man  shall 
be  deprived  of  any  of  his  rights   of  person   or  property 
without  an  opportunity  of  being  heard;  that  whenever  the 
judgment  of  any  tribunal  is  about  to  be  used  in  any  pro- 
ceeding, whether  direct  or  collateral,  it  is  incumbent  on  the 
court  wherein  it  is  ofifered  to  inquire  into  the  jurisdiction 
of  the  court  rendering  the  judgment;  and  that  no  court  can 
bring  a  party  within  its  power  by  virtue  of  false  findings 
and   recitals/     It  is   worthy  of  consideration   that  in  the 
greater  number  of  cases  usually  cited  as  authority  for  col- 
lateral  attacks,    the   language   used  by  the  court,  though 
sufficiently  general  to  apply  to  domestic  judgments  of  courts 
of  general  jurisdiction,  valid  on  their  face,  was  employed 
in  determining  the  effect  of  judgments  either  of  a  sister 
State,  or  of  a  court  of  limited  jurisdiction,  or  of  a  court 
whose  want  of  jurisdiction  appeared  upon  the  record;  and 
that  in  those  cases  where  the  question  of  collateral  attack 
was  necessarily  involved,  and  was  affirmatively  determined, 
such  determination  was  generally  based  upon  mere  dicta. 
The   opinion   of  Judge  Marcy   in   StarbucJc  v.    Murrcaj  (5 
Wend.  148),  is  frequently  cited  to  show  that  want  of  juris- 
diction over  the  defendant,  may  always  be  proven.     He,  in 
deciding  whether  such  proof  should  be  received  against  a 
record  made  in  ariOi!/i<^r /S'to^e,  said:  "But  it  is   strenuously 
contended  that  if  other  matter  may  be  pleaded  by  the  de- 


1  Goudy  u.  Hall,  30  111.   109;  ^Veb- 
ster  V.  ricicl,   11  How.  437;  Gwiii  v. 
McCarroll,  1  S.  &  M.  351;  Baldwin  v. 
138 


Kimmel,   IG   Abb.   Pr.   353;  1    Robt. 
109;  Johnsons.  Wright,  27  Geo.  555. 


Chap.  VIII.]  CzVSES  ADMITTING  PAROL  EVIDENCE.  §133 

fendant,  he  is  estopped  from  asserting  anything  against  the 
allegation  contained  in  the  record.    It  imports  perfect  verity, 
it  is  said,  and  the  parties  to  it  cannot  be  heard  to  impeach 
it.     It  appears  to  me  that  this  proposition  assumes  the  very 
fact  to  be  established,  which  is  the  only  question  in  issue. 
For  what  purpose  does  the  defendant  question  the  jurisdic- 
tion of  the  court?     Solely  to  show  that  its  proceedings  and 
judgments  are  void,  and  therefore  the  supposed  record  is 
not  in  truth  a  record.     If  the  defendant  had  not  proper 
notice  of,  and  did  not  appear  to  the  original  action,  all  the 
State  courts,  with  one  exception,  agree  in  opinion  that  the 
paper  introduced  as  to  him  is  no  record;  but  if  he  cannot 
show,  even  against  the  pretended  record  that  fact,  on  the 
alleged  ground  of  the  uncontrollable  verity  of  the  record, 
he  is  deprived  of  his  defense  by  a  process  of  reasoning  that 
is  to  my  mind  little  less  than  sophistry.     The  plaintiffs  in 
effect  declare  to  the  defendant :  The  paper  declared  on  is  a 
record,    because  it  says  you  appeared,  and  you  appeared 
because  the  paper  is  a  record.    This  is  reasoning  in  a  circle. 
The  appearance  makes  the  record  uncontrollable  verity,  and 
the  record  makes  the  appearance  an  unimpeachable  fact. 
The  fact  which  the  defendant  puts  in  issue  is  the  validity  of 
the  record,  and  yet  it  is  contended  that  he  is  estopped  by 
the  unimpeachable  credit  of  that  very  record  from  disprov- 
ing any  one  allegation  contained  in  it.     Unless  a  court  has 
jurisdiction,  it  can  never  make  a  record,  which  imports  un- 
controllable verity  to  the  party  over  whom  it  has  usurped 
jurisdiction,  and  he  ought  not  therefore  to  be  estopped,  by 
any  allegation  in  that  record,   from  proving  any  fact  that 
goes  to  establish  the  truth  of  a  plea  alleging  want  of  juris- 
diction.    So  long  as  the  question  of  jurisdiction  is  in  issue, 
the  judgment  of  a  court  of  another  State,  is  in  its  effect  like 
a  foreign  judgment;  it  m  prima  facie  evidence;  but  for  all 
the  purposes  of  sustaining  that  issue,  it  is  examinable  into 
to  the  same  extent  as  a  judgment  rendered  by  a  foreign 
court.     If  the  jurisdiction  of  the  court  is  not  impeached,  it 
has  the  character  of  a  record,  and  for  all  purposes  should 
receive  full  faith  and  credit."   The  language  of  this  opinion, 
though  general  in  toims,  was  used  in  relation  to  the  judg- 
ment of  n  '>  >^vi,  of  another  State,  and,  therefore,  so  far  as  it 

139 


§§133-134  LAW  OF  JUDGMENTS.  [Chap.  VIII. 

reflects  upon  other  judgments,  is  a  mere  dictum.  A  niuuber 
of  other  cases  in  the  same  State,  like  the  one  just  cited,  are 
sound  and  undoubted  as  to  the  points  necessarily  involved; 
but  as  to  reflections  upon  domestic  judgments  of  courts  of 
records  are  mere  dicta} 

§  134.      Reasons  for  Holding  the   Record  Conclusive. 

All  the  arguments  adduced  to  show  that  the  inquiry  into 
the  jurisdiction  over  the  parties  in  the  tribunal  pronouncing 
judgment,  should  on  all  occasions  be  considered  as  open, 
seem  to  admit  of  ready  answers.    That  the  matters  intended 
by  a  court  of  record  for  its  memorials,  may  be  proven  not 
to  be  a  record  by  parol  evidence,   is  in  conflict  with  the 
principles  recognized  from  the  earliest  times  of  our  common 
law,  that  the  pica  of  nid  tiel  record  was  to  be  decided  only 
by  inspection  of  the  alleged  matter  of  record.     The  court 
has  ample  authority  to  make  a  record;  and  it  is  not  true 
that  this  authority  is  dependent  upon  jurisdiction  over  the 
party  against  whom  the  record  speaks.     Neither  is  it  true, 
that  maintaining  the  verity  of  the  record,  in  collateral  pro- 
ceedings, is  more   repugnant  to  natural   justice   than   the 
opposite  course  would  be .     A  party  who  has  been  wTonged, 
by  being  judged  without  any  opportunity  to  make  his  de- 
fense, may  avoid   the   adjudication  in  various  ways.     He 
may  appeal  to  some  higher  tribunal  and  have  the  judgment 
reversed;  he  may  move  in  the  tribunal  w^here  it  was  pro- 
nounced and  have  it  set  aside;  or  he  may  seek  and  obtain 
equitable  aid  to  prevent  its  execution.     It  is  true  he  cannot 
generally  affect  the  rights  of  innocent  third  parties,  growing 
out  of  a  judgment  regular  on  its  face.     But  as  to  those  par- 
ties, it  Avould  be  as  great  a  violation  of  the  principles  of 
"natural  justice"  to  deprive  them  of  propertj^  acquired  for 
a  valuable   consideration,    by   establishing    some   hidden 
infirmity  preceding  the  judgment,  as  it  is  to  deprive  the 


1  Bordeu  v.  Fitch,  15  Johns.  140; 
Pollard  V.  Wegener,  13  Wis.  5G9; 
Bloom  u.  Burdick,  1  Hill,  130;  Eapo 
V.  Heaton,  9  Wis.  328;  Pendleton  v. 
Weed,  17  N.  Y.  72;  Steen  v.  Steon, 
25  Miss.  513;  Chenung  Canal  Banku. 
Judson,  4  Seld.  254;  Edwards  v. 
Toomer,    14  S.    &   M.   80;   Noycs  v. 

140 


Butler,  G  Barb.  G13;  Fitzhugh  v.  Cus- 
ter, 4  Tex.  390;  Hard  v.  Shipman;  6 
Barb.  G21;  Stallings  v.  Gulley,  3 
Jones'  Law,  345;  Corwin  v.  Merritt, 
3  Barb.  341;  Elliott  v.  Peirsal,  1  Pet. 
340;  Dobson  v.  Pearce,  2  Kern.  15G; 
Smith  V.  Pomeroy,  2  Dillon  C.  C.  414. 


Chap.  YIII.]  NEVER  VOID   FOR  ERROR. 


g§134-135 


defendant  of  Ins  righis,  by  maintaining  the  integrity  of  the 
record.  And,  as  the  hiw  cannot  minister  abstract  justice  to 
all  the  parties,  it  is  at  liberty  to  pursue  such  a  course  as 
will  best  subserve  public  policy.  This  course  requires  that 
there  should  be  confidence  in  judicial  tribunals,  and  that 
titles  resting  upon  the  proceedings  in  those  tribunals  should 
be  respected  and  protected.  The  hardship  arising  from  an 
erroneous  or  inadvertent  decision  upon  jurisdictional  ques- 
tions, is  no  greater  than  that  issuing  from  an  erroneous  or 
inadvertent  decision  upon  other  matters.  That  the  reversal 
of  a  judgment  in  an  appellate  court  shall  not  affect  rights 
acquired  under  it,  by  third  parties,  is  a  rule  universally  and 
uncomplainingly  acknowledged. 

§  135.  Judgment  Never  Void  for  Error. — Jurisdiction 
being  obtained  over  the  person  and  over  the  subject  matter, 
no  error  in  its  exercise  can  make  the  judgment «void.^  The 
authority  to  decide  being  shown,  it  cannot  be  divested  by 
being  improperly  or  incorrectly  employed.  Error  of  de- 
cision may  be  corrected,  but  not  so  as  to  reach  those  who 
have  in  good  faith  relied  upon  its  correctness.^  The  same 
rules  apply  to  actions  to  recover  delinquent  taxes  as  in 
other  cases,  in  respect  to  collateral  attacks.''  It  cannot  be 
shown,  to  avoid  the  effect  of  such  judgments,  that  the  taxes 
were  previously  paid.'*  Neither  will  such  judgment  be  any 
the  less  effective  because  it  appears  from  the  judgment  roll 
that  the  assessment  was  illegal  and  void.*    A  statute  of  the 


1  Wimberly  v.  Hurst,  33  111.  1G6  ; 
Cloud  V.  El  Dorado  Co.,  12  Cal.  128; 
Ex  parte  Watkins,  3  Pet.  193  ;  Pres- 
ton V.  Clark,  9  Geo.  24G  ;  Blakely  v. 
Calder,  1  Smith,  G21  ;  B.  &  W.  E.  K. 
Co.  V.  Sparhawk,  1  Allen,  448  ;  Cail- 
leteau  v.  Ingouf,  14  La.  An.  623;  Bal- 
giano  V.  Cooke,  19  Md.  375;  Savage  v. 
Hussey,  3  Jones,  N.  C.  159;  Hathaway 
u.Hemmingway,  20  Conn.  190;  Feaster 
V.  Fleming,  56  111.  457  ;  Fleming  v. 
Johnson,  26  Ala.  421.  A  judgment 
in  excess  of  the  amount  prayed  for  in 
the  complaint,  or  giving  relief  not 
asked  for  in  the  complaint  is  not  void. 
Chase  v.  Christiansou,  41  Cal.  253. 


2  Pursley  v.  Hayes,  22  Iowa,  11. 

3  Scott  V.  Pleasants,  21  Ark.  3G4 ; 
Eitel  V.  Foote,  39  Cal.  439. 

4  Cadmus  v.  Jackson,  52  Penn.  S. 
295. 

5  Mayo  V.  Ah  Loy,  32  Cal.  p.  477; 
Mayo  V.  Foley,  40  Cal.  281;  Jones  v. 
Gillis,  5  P.  L.  E.  132,  and  Anderson 
V.  Eyder,  S.  C.  of  Cal.,  April  28,  1873. 

These  cases  seem  to  me  irreconcil- 
able ^yith  a  portion  of  the  opinion  in 
the  case  of  Eeilly  v.  Lancaster,  39 
Cal.  354.  In  Mayo  v.  Ah  Loy,  the 
court  said,  that  while  a  tax  imposed 
on  property  on  I  street,  to  pay  for  im- 
proving J  street,  would  be  imauthor- 
1-11 


§gl35-135a 


LAW  OF  JUDGMENTS.  [Chap.  VIII. 


State  of  Missouri  autliorizecl  a  statutory  foreclosure  of  mort- 
gages and  a  judgment  for  the  sale  of  the  premises,  and  a 
personal  judgment  against  the  mortgagor.  A  court  of  gen- 
eral jurisdiction  at  law  and  in  equity,  proceeding  under  this 
statute,  rendered  against  the  vendee  of  the  mortgagor  a  fore- 
closure, and  also  a  personal  judgment.  This  personal  judg- 
ment, in  an  elaborate  opinion,  was  held  to  be  void,  on  the 
ground  that,  in  addition  to  having  jurisdiction  over  the 
subject  matter  and  of  the  person,  the  court  must  be  author- 
ized to  give  the  kind  of  relief  which  its  judgment  assumes 
to  grant.  ^ 

§  135*.  Judgments  -without  Issue  Joined. — In  the  pre- 
ceding section,  we  have  shown  by  numerous  citations,  that 
when  jurisdiction  over  both  the  parties  and  the  subject 
matter  is  once  obtained,  no  error  committed  in  the  exercise 
of  that  jurisdiction  can  make  the  proceedings  or  judgment 
of  the  court  void.  "We  do  not  remember  ever  meeting  any 
direct  denial  of  this  rule.  But  there  are  cases,  or  perhaps, 
more  accurately  speaking,  expressions  of  the  courts,  which 
we  are  unable  to  reconcile  with  the  rule.  Among  these  ex- 
pressions are  some  made  upon  different  occasions  in  the 

1  Fithian  v.  Monks,  43  Mo.  502. 


ized  and  invalid,  yet  if  such  a  tax  were 
assessed,  and  a  suit  begun  for  its  col- 
lection, a  judgment  in  favor  of  the 
plaintiff,  if  the  court  had  jurisdiction, 
would  be  valid.  In  the  case  of  Maj'o 
V.  Foley,  it  appeared  from  the  record 
that  several  lots  had  been  assessed  in 
gross,  and  that  a  judgment  by  default 
had  been  rendered  in  a  suit  upon  such 
assessment.  The  assessment  was  con- 
ceded to  be  invalid.  But  its  want  of 
validity  was  held  not  to  affect  the  judg- 
ment rendered  to  enforce  it.  But  in 
Reilly  v.  Lancaster,  it  appeared  from 
the  complaint  in  the  record  that  the 
tax  was  levied  and  assessed  by  virtue 
of  a  certain  Act  of  the  Legislature. 
This  Act  was  unconstitutional.  The 
court  decided  that  the  judgment  and 
the  sale  thereunder  were  void.     Why 

112 


and  upon  what  principles  a  person 
sued  for  a  tax  levied  by  virtue  of  an 
unconstitutional  law,  may  suffer  judg- 
ment to  be  entered  against  him  without 
affecting  his  rights,  is  not  explained. 
This  action  was  brought  in  a  court  of 
general  jurisdiction.  The  court  had 
authoritj'  to  determine  whether  the 
tax  was  levied  imder  a  constitutional 
law.  By  rendering  judgment  for  plain- 
tiff, it  affirmed  the  validity  of  the  tax 
and  of  the  law.  Why  was  this  judg- 
ment coram  nonjudice?  If  not  coram 
non  jndice,  why  was  it  void  ?  The 
court  had  jurisdiction  of  the  subject 
matter  and  of  the  parties.  Its  decis- 
ion was  erroneous,  but  not  more  so 
than  the  judgments  in  question  in  the 
cases  of  Mayo  v.  Ah  Loy  and  Mayo  v. 
Folev. 


Chap.  VIII.]  CONTEMPT  OF  COURT.  §§135a-137 

State  of  Mississippi,  in  regard  to  the  effect '  of  judgments 
rendered  in  the  absence  of  any  issue  of  law  or  of  fact.    The 
High  Court  of  Errors  and  Appeals  in  that  State,  but  a  few 
years  ago,   twice  declared   that  "a  judgment   without  an 
issue  to  be  determined  by  it  is  a  nullity;"^  and  this  lan- 
guage was  subsequently  cited  and  approved  by  the  Supreme 
Court  of  the  same  State.'     In  neither  of  the  cases  was  any 
jurisdictional  question  presented.    The  parties  seem  to  have 
been  properly  in  court.     The  rendition  of  the  judgments 
was,  therefore,  but  an  erroneous  exercise  of  the  powers  pos- 
sessed by  the  court.     The  error,  in  each  instance,  was  cor- 
rected upon  appeal.     The  parties  did  undertake  to  treat  the 
iud^ments  as  void;  and,   no  doubt,    the   language    of  the 
court,  is  attributable  to  the  use  of  the  words  "void"  and 
"erroneous"  as  convertible  terms,  rather  than, to  any  intent 
of  declaring  that  the  judgments    before  them   on  appeal 
were  "nullities,"  in  the  absolute  sense  of  that  term. 

§  136.  Judgment  as  an  Entirety. — A  judgment  rendered 
against  persons  jointly  liable,  is  an  entirety,  and  if  void  as 
to  one  defendant,  is  void  as  to  all.^  If,  in  an  action  on  a 
judgment  against  several  joint  defendants,  it  appears  that 
one  of  them  was  never  served  with  process,  the  judgment 
is  considered  as  a  nullity,  even  against  the  others.  *  But 
it  is  different  where  the  parties  are  severally  liable.  ^ 

§  137.  Judgment  for  Contempt  of  Court. — In  Tennes- 
see, it  was  decided  that  it  is  essential  to  the  validity  of  a 
judgment  for  contempt,  that  it  should  state  as  ground  for 
its  jurisdiction,  the  matters  constituting  the  alleged  con- 
tempt. ^  But  this  decision  professes  to  be  a  departure  from 
the  common  law,  and  such  it  undoubtedly  is. ''     In  Califor- 


1  Steele  v.  Palmer,  41  Miss.  89; 
Armstrong  v.  Barton,  42  Miss.  506. 

sPorterfiekl  v.  Butler,  47  Miss.  170. 

aShuford  v.  Cain,  1  Abb.  U.  S.  302; 
Kitchens  v.  Hutcbins,  44  Geo.  620; 
Commercial  Bank  v.  "Wilson,  14 
Grant's  Ch.  473;  C.  M.  L.  Ins.  Co.  v. 
Clover,  36  Mo.  392. 

4Holbrook  v.  Murray,  5  Weml.  161. 


SBuffum  V.  Kamsclell,  55  Maine, 
252. 

estate  v.  Galloway,  5  Cold.  326. 

lEx  parte  Summers,  5  Ired.  149; 
Burdett  v.  Abbot,  14  East.  1;  Stock- 
dale  V.  Hansard,  9  Ad.  &  El.  1;  Sher- 
iff of  Middlesex's  Case,  11  Ad.  &  El. 
273. 

143 


§§137-130  LAW   OF  JUDGMENTS.  [Clliip.  YIII. 

nia,  tlio  statute  "regulating  contempts  and  tlicii*  punish- 
ment, provides,  that  when  the  alleged  contcmi:)t  is  not 
committed  in  the  presence  of  the  court,  an  affidavit  of  the 
facts  constituting  the  contempt  must  be  presented.  If 
there  be  no  affidavit  presented,  there  is  nothing  to  set  the 
power  of  the  court  in  motion,  and  if  the  affidavit,  as  pre- 
sented, be  one,  which,  upon  its  face,  fails  to  state  the  sub- 
stantive facts,  which,  in  point  of  law  do,  or  might,  consti- 
tute a  contempt  on  the  part  of  the  accused,  the  same  result 
must  follow — for  there  is  no  distinction  in  such  a  case  be- 
tween the  utter  absence  of  an  affidavit  and  the  presentation 
of  one  which  is  defective  in  substance,  in  stating  the  facts 
constituting  the  alleged  contempt."  Therefore,  an  order  of 
a  court  punishing  a  man  for  contempt  not  committed  in  the 
presence  of  the  court,  unless  it  is  based  upon  an  affidavit 
sufficient  in  substance,  is  void.  ^  Judgments  entered  pun- 
ishing persons  for  contempt  of  court,  are  subject  to  review 
in  superior  courts  upon  jurisdictional  grounds.  They  are 
sometimes  brought  up  on  appeal, "  sometimes  on  certiorari,  ^ 
and  are  frequently,  in.  effect,  reviewed  on  Avrits  of  habeas 
corpus.^ 

§  138.  "  Sunday  is  dies  non  Judicus ;  and  by  the  common 
law,  all  judicial  proceedings  which  talco  place  on  that  day, 
are  void."^ 

§  139.  Judgment  -without  Authority  of  Court. — Where 
plaintifi',  in  open  court,  ofifcred  to  let  defendant  take  judg- 
ment for  costs,  and  tendered  his  confession  to  that  effect, 
which  the  defendant  refused  to  accept,  and  the  court  de- 
clined to  enter,  the  clerk,  at  request  of  plaintiff's  attorney, 
entered  the  confession  in  the  minutes  of  the  court.  Held, 
that  this  entry  being  without  consent,  and  in  face  of  the 
decision  of  the  court,  was  a  nullity.*'  But  in  another  case, 
a  decree  entered  without  being  legally  settled,  and  in  viola- 


IBatchelder-u.  Moore,  42  Cal.  415. 

sPeoplo  V.  O'Neil,  S.  C,  of  Cal. 
Oct.  1873. 

3Batcheldor  v.  Moore,  42  Cal.  4l5. 

iEx  parte  Howe,  7  Cal.  181;  Ex 
park  Cohen,  0  Cal.  318. 

144 


5 Chapman  v.  State,  5  Blkf.  Ill; 
Blood  V.  Bates,  31  Verm.  147;  Swann 
V.  Broome,  3  Burr,  1595;  Pearce  v. 
Atwood,  13  Mass.  324;  Arthur  v. 
Mosby,  2  Bibb.  589. 

GBarefield  v.  Bryan,  8  Geo.  4G3. 


Chap.  VTIIJ    roPv  certain  pukposes  only.  §§139-143 

tion  of  the  express  directions  which  the  clerk's  minutes 
showed  were  given  by  the  court,  in  rehxtion  to  the  pro- 
visions to  be  inserted,  no  motion  being  made  to  correct 
or  set  it  aside,  was  regarded  as  the  valid  decree  of  the 
court.  1 

§  140.  If  jurisdiction  be  obtained  over  the  defendant 
in  his  lifetime,  a  judgment  rendered  against  him  subse- 
quently to  his  death,  is  not  void. " 

§  141.  A  Judgment  against  a  Party  not  named  in  the 
complaint,  nor  in  any  other  part  of  the  record,  is  void. 
We  cannot  presume  that  one  who  does  not  appear  to  have 
been  a  i3arty,  had  his  day  in  court.  ^ 

§  142.  Jurisdiction  continues  till  Judgment. — Jurisdic- 
tion over  a  party  being  obtained,  continues  until  judgment; 
and  he  must,  therefore,  take  notice  of  all  the  proceedings 
until  that  time.  After  judgment  he  is  not  regarded  as 
always  present  and  under  control  of  the  court.  An  order 
made  after  judgment  setting  aside  a  sale,  no  notice  being 
given  to  the  adverse  party,  will  not  avail  the  party  who  pro- 
cured it.  4 

§  143.  Jurisdiction  for  Certain  Purposes  Only. — Some- 
times a  court  may  have  jurisdiction  over  the  defendant  for 
certain  purposes  only.  Thus,  by  a  statute  of  the  State  of 
Ohio,  jurisdiction  was  given  the  court  of  common  pleas 
over  absent  defendants  on  publication  of  notice  ' '  in  all 
cases  properly  cognizable  by  courts  of  equity,  where  either 
the  title  to,  or  boundaries  of  land  may  come  in  question,  or 
where  a  suit  in  chancery  becomes  necessary  to  obtain  the 
recission  of  a  contract  for  the  conveyance  of  land,  or  to 
compel  the  specific  execution  of  such  contract."  Acting 
under    this  statute,    an  absent  defendant   was  proceeded 

iCushmanv.  Shepai-d,  4  Barb.  113.  1411,  where  it  is  said  that  judgment 

sCollins  V.  Mitchell,  5  Flor.   3G4;  i"  must  be  against  one  capable  of  con- 

Loring  v.  Folger,  7  Gray,  505;  Colo-  tracting  for  it,  is  a  debt."  For  further 


man  v.  McAnulty,  IG  Mo.  173;  Yaple 
V-  Titus,  41  Penn.  S.  203;  Day  u.  Ham- 
burg, 1  Browne,  75;  Gregory  v. 
Haynes,  21  Cal.  443.  For  contra  opin- 
ion, see  Carter  v.  Carriger,  3  Yerg. 
411;  also  Morse  v.  Toppan,  3  Gray, 

(10)  145 


consideration  of  this  subject,  see  sec- 
tion 153. 

3  Ford  V.  Doyle,  37  Cal.  346;  Mose- 
ley  V.  Cocke,  7  Leigh,  225. 

4Wright  V.  Leclaire,  3  Clarke,  22L 


§^143-144  LAW  OF  JUDGMENTS.  [Chap.  VIII. 

against  by  publication  of  notice,  to  compel  the  specific  per- 
formance of  a  contract,  and  to  obtain  judgment  for  a  sura 
of  money  claimed  by  tlie  plaintiff  under  sucli  contract.  The 
court  gave  a  decree  for  the  performance,  and  also  for  the 
sum  of  money,  and  authorized  a  levy  to.  be  made  to  satisfy 
the  decree .  The  action  of  the  court,  in  awarding  the  sum 
of  money,  was  attempted  to  bo  justified  on  the  ground  that 
a  court  having  jurisdiction  for  one  purpose,  might  exercise 
it  for  the  complete  settlement  of  the  matters  in  controversy, 
but  such  action  was  declared  void  for  want  of  jurisdiction 
over  the  defendant  for  the  purpose  of  rendering  a  personal 
judgment  against  him  for  a  sum  of  money.  ^  In  the  same 
State,  proceedings  were  instituted  to  foreclose  a  mortgage. 
Service  of  summons  was  made  by  publication.  A  personal 
judgment  was  taken  against  the  defendant.  This  judgment 
was  declared  to  be  absolutely  void,  because  the  statute  did 
not  authorize  any  other  judgment  than  one  for  the  sale  of 
the  premises  to  satisfy  the  debt  secured  by  the  mortgage.  2 

g  144.  Disqualiiieation  of  the  Judge. — It  occasionally 
hapj)ens  that,  while  a  court  has  jurisdiction  over  the  subject 
matter  in  controversy,  and  the  parties  to  the  action,  the 
judge  of  the  court  is  disqualified  from  acting  by  reason  of 
his  having  an  interest  in  the  suit,  or  his  being  related  to 
some  of  the  parties,  or  his  being  within  some  of  the  dis- 
qualifications recognized  by  the  common  or  by  the  statute 
law.  "  It  is  a  maxim  of  every  country  that  no  man  should 
be  judge  in  his  own  cause.  The  learned  wisdom  of  enlight- 
ened nations,  and  the  unlettered  ideas  of  ruder  societies  are 
in  full  accordance  upon  this  point,  and  wherever  tribunals 
of  justice  have  existed,  all  men  have  agreed  that  a  judge 
shall  never  have  the  power  to  decide  where  he  is  himself  a 
party.  In  England,  it  has  always  been  held,  that,  however 
comprehensive  may  be  the  terms  by  which  jurisdiction  is 
conferred  upon  a  judge,  the  power  to  decide  his  own  cause 
is  always  a  tacit  exception  to  the  authority  of  his  ofiice. 
Such  I  conceive  to  be  the  law  of  this  State."  3     These  prin- 


iBoswell  V.  Dickerson,  4McL.  2G2. 
2"Wood  V.  Stanberry,   21  Ohio.   S. 
142. 

146 


3  Wasli.  Ins.  Co.  v.  Price,  1  Hopk- 
Oh.  1. 


Chap.    VIII.]  STATUTORY   PROHIBITIONS.  §§144-146 

ciples  extend  not  only  to  cases  in  which  the  judge  is  a  party 
upon  the  record,  but  also  to  other  cases  in  which  he  has 
an  interest,  however  minute,  as  where  one  of  the  parties 
is  a  corporation,  of  which  \h.e  judge  is  one  of  the  stock- 
holders. 1 

§  145.  At  Common  Law. — While  it  is  well  settled  by 
the  common  law,  that  no  judge  ought  to  act  where,  from  in- 
terest or  from  any  other  cause,  he  is  supposed  to  be  partial 
to  one  of  the  suitors,  yet  his  action  in  such  a  case  is  re- 
garded as  an  error  or  irregularity,  not  affecting  his  juris- 
diction, and  to  be  corrected  by  a  vacation  or  reversal  of  his 
judgment,  except  in  the  case  of  those  inferior  tribunals 
from  which  no  appeal  or  writ  of  error  lies."  "If  the  facts 
are  known  to  the  party  recusing,  he  is  bound  to  make  his 
objection  before  issue  joined,  and  before  the  trial  is  com- 
menced, otherwise  he  will  be  deemed  to  have  waived  the 
objections  in  cases  where  a  statute  does  not  make  the  pro- 
ceedings void.  Except  in  cases  where  a  statute  forbids  it, 
the  parties  by  a  joint  application  to  the  judge,  suggesting 
the  ground  of  recusation,  expressly  waiving  all  objections 
on  that  account,  and  requesting  him  to  proceed  with  the  trial 
or  hearing  signed  by  them  or  their  attorneys,  may  give  the 
judge  full  power  to  proceed  as  if  no  objection  existed.  This 
is  denominated  in  civil  and  Scotch  law  prorogated  juris- 
diction; and  a  tacit  prorogation  is  inferred  against  a  plaintiff 
who  brings  his  cause  before  a  judge  who  is  known  to  him 
to  be  disqualified  to  try  it :  and  against  a  defendant,  who, 
knowing  the  existence  of  just  grounds  of  recusation,  appears, 
and  Vv'ithout  objecting,  offers  defenses  in  the  cause,  either 
dilatory  or  peremptory. "3 

§  146.  Statutory  Prohibitions. — In  most  of  the  States, 
statutes  have  been  passed,  which,  in  direct  terms,  prohibit 

1  Place  u.  Butternuts  Manf.  Co.  28  423;    Gorrill    t'.    Whittier,    3    N.   H. 
Barb.  503  ;  Gregory  v.  C.  G.  &  G.  R. 
E.  Co.,  4  Ohio,  S.  075;  Wash.  lu.  Co. 
V.  Price,  1  Hopk.  1. 

3  Dimes  i\  Grand  Junction  Canal 
Co.,  47  Jur.  73  and  IG  E.  L.  and  Eq. 
63  ;   Heydenfeldt  v.   Towns,  27  Ala. 


268. 

sMoses  V.  Julian,  45  N.  II.  52; 
Shropshire  v.  State,  7  Eng.  IGO;  Ells- 
worth tJ.  Moore,  5  Clarke,  4SG;  Bald- 
win V.  Calkins,  10  Wend.  1G7. 

147 


^146  LAW  OF  JUDGMENTS.  [Chap.  VIII. 

judges  from  acting  in    certain  specified   cases.     Thus,   in 
Massachusetts,  it  was  provided  that  when  a  judge  of  pro- 
bate was  interested  in  an  estate,  the  same  should  be  settled 
in  another  county;  and  in  Alabama,  the  statute  enacted  that 
"  no  judge  of  probate  shall  act  in  any  proceeding  or  take 
jurisdiction  of  any  matter  wherein  he  is  interested."     In 
both  of  these  States  it  has  been  decided  that  the  action  of 
any  judge  in  any  matter  where  he  is  interested,  is  coram  non 
Judiee  and  void.  ^     A  statute  in  New  York  directed  that  "  no 
judge  of  any  court  shall  act  as  such  in  any  cause  to  which 
he  is  a  party,  or  in  which  he  is  interested,  or  in  which  he 
would  be  disqualified  from  being  a  juror  by  reason  of  con- 
sanguinity or  affinity  to  either  of  the  parties."     This  was 
held  to  divest  the  judge  of  jurisdiction  in  the  extreme  sense, 
so  that  the  consent  of  the  parties   could  not  give  him  any 
authority  in  the  case.     "  The  party  who  desired  it  might  bo 
permitted  to  take   the   hazard   of  a  biased  decision  if  he 
alone  were  to    suffer  for   his  folly — but  the  State  cannot 
endure  the  scandal  and  reproach  which  would  be  visited 
upon  its  judiciary  in  consequence.      Although   the  party 
consent,  he  will  invariably  murmur  if  he  do  not  gain  his 
cause;  and  the  very  man   who  induced  the  judge   to   act 
when  he  should  have  foreborne,  will  bo  the  first  to  arraign 
his  decision  as  biased  and  unjust.     If  we  needed  an  illus- 
tration of  this,  the  attempt  which  the  counsel  for  the  moving 
party  in  this  case  assumed  toward  the  court,  the  strain  of 
argument  he  addressed  to  it  and  the  impression  it  was  cal- 
culated to  make  upon  an  audience,  are  enough  to  show  that 
whatever  a  party  may  consent  to  do,  the  State  cannot  afibrd 
to  yield  up  its  judiciary  to  such  attack  and  criticism  as  will 
inevitably  follow  upon  their  decisions  made  in  disregard  of 
the  prohibitions  of  the  statute  under  consideration,"-  This 
language  shows  in  a  clear  and  fotcible  manner,  the  evils 
resulting  from  the  practice  of  permitting  any  judge  to  act 
under  any  circumstances  in  a  matter  wherein  his  judgment 
is  likely  to  be  attributed  to  improper  motives.     Neverthe- 
less, it  is  stipulated  in  many  of  the  statutes  upon  this  subject. 


1  Cottle    appellant,    5    Pick.    483; 
Coffin  V.  Cottle,  9  Pick.   287;  Sigour- 
uey  V.  Liblev,  21  Pick.  101;  Gay  v. 
148 


Minot,   3  Cash.  252;  State  v.  Castle- 
berry,  23  Ala.  85. 

3  Oakloy  v.  Aspimvall,  3  Comst.  547. 


Cliap.    VIIT.]  JUDGES  DISQUALIFIED. 


g§14G-li7 


that  he  may  act  by  consent  of  the  parties  interested.  But 
the  general  effect  of  the  statutory  probibitious  in  the  several 
States,  is  undoubtedly  to  change  the  rule  of  the  common 
law  so  far  as  to  render  those  acts  of  a  judge,  involving  the 
exercise  of  judicial  discretion,  in  a  case  wherein  he  is  dis- 
qualified from  acting,  not  voidable  merely,  but  void.  ^  Bui 
a  judge  disqualified  from  trying  a  cause,  may  make  such 
orders  as  ' '  are  merely  formal,  or  as  are  necessary  for  the 
continuance  of  the  cause  to  a  future  term  at  which  a  quali- 
fied judge  may  be  present."-  On  this  ground  it  has  been 
decided  that  a  judge  who  is  assignee,  may,  as  such  assignee, 
confess  judgment  against  himself  in  the  capacity  of  assignee, 
in  his  own  court,  and  that  if  any  judge  is  sued  in  his  own 
court,  there  is  no  objection  to  his  entering  judgment 
against  himself  upon  his  own  confession,  as  such  entry  does 
not  require  any  judicial  investigation  or  determination.  ^ 

§  147.  Where  t-wo  out  of  three  Judges  were  disqualified 
from  acting,  by  reason  of  having  been  attorneys  in  the  case, 
and  the  parties  stipulated  for  trial  before  a  single  judge,  the 
judgment  pronounced  by  such  judge,  the  others  sitting  pro 
format  in  order  to  constitute  a  court,  was  held  to  be  valid.  - 


iKeams  v.  Kearns,  5  Cold.  217; 
Converse  v.  McArtlmr,  17  Barb.  410; 
Schoonmaker  v.  Clearwater,  41  Barb. 
200;  Chambers  r.  Clearwater,  1  Kcyes, 
310;  Estate  of  White,  37  Cal.  190; 
Chambers  v.  Hodges,  23  Tex.  104; 
People  I'.  De  la  Guerra,  24  Cal.  73; 
Ochus  V.  Sheldon,  11  Fla.  138. 

Where  tho  statute  prohibits  the 
judge  from  acting  in  certain  cases,  un- 
less by  consent  of  the  parties  entered 
of  record,  the  Supreme  Court  of 
Alabama  in  a  recent  case  said:  "We 
think  that  justice  will  be  best  sub- 
served by  ruling  that  the  disabilities 
mentioned,  render  the  proceedings  of 
the  court  voidable  only  and  not  void. 
These  disqualifications  may  be  un- 
known, or  so  obscure  as  to  require  a 
judicial  decision  to  determine  their 
existence.     It   is   a   serious  thing  to 


annul  the  judgments  of  the  courts, 
and  it  ought  not  to  be  done  where 
the  consent  of  the  parties  alone  is 
requisite  to  their  validitj',  and  its 
entry  on  the  record  is  the  only  ad- 
missible evidence  that  it  was  given." 
Hine  v.  Hussey,  45  Ala.  513. 

Act  of  Probate  Judge  in  Massachu- 
setts in  appointing  wife's  brother 
admiaistrator  of  estate  of  which  her 
father  was  creditor,  being  a  case  in 
which  the  judge  was  disqualified,  was 
held  void.  Hall  u.  Thayer,  105  Mass. 
219. 

sBuckingham  V.  Davis,  9  Md.  334; 
Heydenfeldt  v.  Towns,  27  Ala.  243; 
Moses  u.  Julian,  45  N.  H.  52;  Estate 
of  White,  37  Cal.  190. 

3 Thornton  v.  Lane,  IJ  Geo.  520. 

4Walker  v.  E,ogan,  1  Wis.  597. 

149 


5gl48-148a 


LAW  OF  JUDGMENTS. 


[Chap.  VIII. 


§  148.  Judge  de  facto. — One  who  supposes  himself  to 
be  invested  with  an  office,  and  who,  not  being  a  mere 
usurper,  acts  in  good  faith  as  a  judge,  may  constitute  a 
court  de  facto.  An  objection  to  his  authority  or  commission 
must  be  made  before  the  trial,  or  it  will  be  disregarded.  ^ 
Where  the  constitution  of  a  State  required  a  judge  to  be 
thirty  years  of  age,  it  was  decided  that  if  the  appointing 
power  selected  some  person  as  a  judge,  who  was  less  than 
thirty  years  old,  his  acts  were  valid  until  he  was  removed 
from  office.-  The  authority  of  a  judge  de  facto  can  not  be 
called  in  question  collaterally.  His  title  to  the  office  can 
be  considered  and  determined  only  in  some  proceeding 
instituted  for  that  purpose.  ^ 

§  148a.— Judgment  Fraudulently  Altered  —  The  clerk  of 
the  court,  at  the  instance  of  the  judgment  creditor,  altered  a 
judgment  by  default  from  $1,400  to  $4,500.    This  judgment, 
having    subsequently   been    collaterally    drawn    in    ques- 
tion, was  held   to  be  void,  in  an  opinion  from  which  we 
present  the  following  extract:      "Wo  admit  that  we  have 
been  unable  to  find  any  reported  authority  precisely  ap- 
plicable to   this  case  ;    but  "sve  are  clearly  of  the  opinion 
that  the  doctrine  uniformly  held  which  renders  void  a  note, 
bond  or  bill  which  has  been  altered  in  a   material  part, 
by  the  party  in  whose  interest  the  alteration  has  been  made, 
must  apply  with  equal,   if  not  greater,  force  to  judgments 
in  courts  of  record.     In  most  of  the  States  the  act  of  alter- 
ing a  public  record,  we  think,  would  not  only  be  held  to 
render  void   any  interest  the  party  making  the  fraudulent 
alteration  might  have  in  the  record,  but  it  would  be  an  in- 
dictable offense.     We  do  not  hesitate,  then,  to  say  that  the 
judgment  was  void  from  and  after  the  alteration."* 


iCase  V.  State,  5  Ind.  1;  State  v. 
Anone,  2  Nott  &  Mc.  27;  State  v. 
Ailing,  12  Ohio,  16. 

150 


2  Blackburn  v.  State,  3  Head.  690. 
sPepiu  u.  Lachenmeyer,  45  N.  Y.  27. 
■1  Hardy  v.  Broaddus,  33  Tex.  GC8. 


Chap.    IX.]  OF  THE  PARTIES. 


CHAPTEE  IX. 

OF  THE  PEESONS  AFFECTED  BY  JUDG:MENT. 

PART  I.- OF  THE  PARTIES. 

§  149.  All  Persons  Competent  to  he  Parties  to  Judgment. 

§  150.  Married  "Women. 

§  151.  Infants. 

§  152.  Lunatics. 

§  153.  Deceased  Persons. 

§  154.  Judgment  Binding  only  on  the  Parties  to  it. 

§  loo.  General  Expressions  Confined  to  Parties  before  the  Court. 

§  156.  Parties  must  be  in  same  Capacity. 

§  157.  Parties  Bound,  though  not  Named  in  the  Record,  if  Numerous. 

§  158.  Must  be  Adversary  Parties. 

§  159.  Must  be  Mutually  Bound. 

§  IGO.  When  Second  Suit  does  not  Include  all  the  Parties  to  the  First  Suit. 

§  ICl.  When  Second  Suit  Includes  Other  Parties. 

PART  II.— OF  PEIVIES. 

§  1G2.  Privity. 

§  163.  Administrators  or  Executors,  and  Heirs  or  Devisees. 

§  164.  Principals  and  Agents. 

§  165.  Assignees  and  Assignors. 

§  166.  Bailors  and  Bailees. 

§  167.  Garnishees. 

§  1G3.  Heirs  and  Ancestors. 

§  169.  Lessors  and  Lessees. 

§  170.  Successors  and  Predecessors  in  Office. 

§  171.  Tenants  in  Ejectment. 

§  172.  Kemainder  Men. 

§  173.  Trustees  and  Cestuis  que  Trust.  * 

PAET  III.— OF    PEESONS  BOUND,    THOUGH  NEITHEE   PAETIES 

NOE  PEIVIES. 

§  174.  Persons  Bound,  who  are  neither  Parties  nor  Privies. 

§  175.  Evidence  to  Show  who  are  the  Keal  Parties  in  Interest. 

§  176.  Parties  who  are  Bound  by  Judgment  against  another  without  Notice, 

§  177.  Corporations  and  Stockholders. 

§  178.  Coimties  and  their  Taxpayers. 

§  179.  Masters  and  Servants. 

g  180.  Principals  and  Sureties. 

§  181.  Of  the  Notice  required  to  be  given  a  Party  to  whom  a  Litigant  may 

Resort  for  Indemnity. 
§  182.  Attachment  Proceedings. 
I  183.  Bailees  and  Bailors. 
§  184.   Officers  and  their  Indemnitors. 
§  185.  Tenant  and  Landlord. 
§  180.  Vendee  and  Vendor. 
§  187.  Warrantee  and  Warrantor 
■  §  138.  Parties  who  cannot  be  called  on  to  Conduct  Suit. 
§  189.  Persons  not  Parties  to  Suit  not  Bound  by  reason  of  jmrticipating  therein. 
f>  190.  Distributee  of  Common  Fund. 

151 


^§1-19-150         LAW  OF  JUDGMENTS.        [Chap.  IX. 

PART  I.— OF  THE  PARTIES. 

g  149.  Who  may  be  Parties. — The  power  and  authority 
of  our  courts  extend  over  every  class  of  persons  and  every 
species  of  property,  situate  within  the  territorial  limits  in 
which  those  courts  are  authorized  to  act,  and  subject  to  the 
same  sovereignty  which  organized  the  courts  and  invested 
them  with  judicial  functions.  Every  subject  is  therefore 
liable  to  be  made  a  party  litigant,  and  to  be  bound  by  the 
result  of  the  litigation.  Those  disabilities  arising  from 
infancy,  from  coverture,  or  from  mental  iniSrmities  which 
render  parties  incapable  of  being  bound  by  their  contracts, 
do  not  have  the  effect  of  exempting  any  person  from  the 
control  of  the  courts.  Eeasoning  from  the  hypothesis  that 
a  judgment  is  a  contract,  a  few  of  the  courts  have  held  that 
parties  exempt  from  the  force  of  their  agreements,  could  not 
be  bound  by  a  judgment.  Thus  it  was  said  in  one  case: 
"The  fact  that  defendant  was  a  married  woman  when  the 
judgment  was  rendered  against  her,  would  alone  be  a  good 
plea  to  this  action.  A  judgment  is  in  the  nature  of  a  con- 
tract; it  is  a  specialty,  and  creates  a  debt,  and  to  have  that 
effect,  it  must  bo  taken  against  one  capable  of  contracting  a 
debt."i 

§  150.  Married  "Women. — The  case  just  cited  sustains 
the  doctrine,  that  a  married  M'oman  may  disregard  the  pro- 
cess of  the  court,  and  assert  against  any  judgment  rendered 
thereon,  the  defense  of  coverture  -which  was  available  to  her 
as  before  the  judgment.  A  judgment  against  a femme  covert 
upon  a  note,  made  during  her  coverture,  was  also  deemed  a 
nullity  in  Maryland.  The  principle  that  a  party  cannot 
impeach  a  judgment  on  any  ground  which  might  have  been 
pleaded  as  a  defense,  it  was  thought  had  no  application  to 
such  a  case,  because  the  defendant  was  not  competent  to 
employ  an  attorney  to  present  her  plea."  The  decision  thus 
made  in  Maryland  has  been  approved  in  Missouri,  and  the 
reasons  for  such  approval  were  expressed  in  the  following 
form:  "  It  is  very  clear  to  my  mind,  that  the  respondent 
was  not  competent  to  employ  an  attorney  or  make  a  defense 

i  Morse  v.  Tappau,  3  Gray,  411.       [      2  Griffith  v.  Clarke,  18  Md.  457. 

152 


Cliap.  IX. J  MAFJIIED  WOMEN.  §150 

in  her  own  name.  She  was  sued  in  a  legal  proceeding  upon 
a  personal  contract  altogether  void  at  law;  and  shall  the 
entry  of  an  unauthorized  judgment  agaiust  her  by  default 
for  non-appearance,  be  allowed  to  prejudice  her  ?  The 
principle  that  a  party  cannot  impeach  a  judgment  in  a  col- 
lateral proceeding,  does  not  apply  to  a  case  where  the  de- 
fendant is  a  femme  covert,  and  not  sui  juris.  As  the 
respondent  labored  under  a  total  disability,  and  could 
neither  control  nor  be  sued  at  law,  I  think  the  judgment 
of  the  Law  Commissioner's  Court  was  void."^  The  spirit 
of  the  decisions  in  Pennsylvania  is,  no  doubt,  in  accord 
with  that  manifested  in  Missouri  and  Maryland.  In  the 
first  named  State,  a  wife  is  liable  upon  certain  contracts, 
made  in  reference  to  the  improvement  of  her  separate  estate. 
Upon  these  contracts  she  may  be  sued,  and  a  valid  judg- 
ment may  be  rendered  against  her.  But  "every  judgment 
against  her  which  does  not  show  upon  its  face  her  liability, 
is  a  void  judgment."  Such  is  the  general  declaration  made 
in  a  recent  decision"  by  Judge  Sharswood.  In  case  the 
cause  of  action  is  stated  in  different  counts,  some  counts 
stating  facts  sufficient  to  constitute  a  cause  of  action  against 
the  wife,  and  others  stating  facts  not  sufficient  for  such  a 
cause  of  action,  he  seems  to  concede  that  in  a  collateral 
attack  upon  the  judgment,  the  onus  of  showing  that  it  was 
based  upon  some  claim  or  contract  by  which  she  was  not 
bound,  rests  upon  the  wife.  Notwithstanding  the  decisions 
to  which  we  have  referred,  the  preponderance  of  authority 
is  in  favor  of  the  rule  that  a  judgment  against  a  married 
woman  is  not  void;  and  that  when  erroneous,  because  based 
upon  a  contract  which  she  was  not  competent  to  make,  or 
from  any  other  reason,  it  is  still  binding  upon  her  until  set 
aside  upon  appeal  or  by  some  other  appropriate  method. 
' '  The  acts  of  femmes  covert,  in  pais,  may  be,  and  fre- 
quently are,  void;  yet  this  does  not  impair  the  conclu- 
sive force  of  judgments  to  which  they  are  parties,  and  if 
they  be  not  reversed  on  error  or  appeal,  their  effects  cannot 
be  gainsaid,  when  they  are  enforced  b}'  ultimate  process, 
or  when  they  are  brought  to  bear  on  their  rights,  in  any 

IHiggins  V.  Peltzer,  49  Mo.  152.      |      sSwayne  v.  Lyon,  67  Pa.  S.  439. 

153 


gl50  LAW   OF  JUDGMENTS.  [Chap.    IX. 

future  contrororsy.     And  a  judgment  against  husband  and 
wife  may  be  satisfied  out  of  the  property  of  either,  or  out 
of  the  common  property."^      "  There  would  be  no  safety  in 
purchasing  at  judicial   sales,    under   judgments   rendered 
after  due  service  of  process  on  female  defendants,  if  the 
title  of  the  purchaser  could  be  defeated  by  proof  in  a  col- 
lateral action,   that  the  defendant  in  the  judgment  was  a 
married  woman  at  the  time  of  the  institution  of  the  suit,  or 
that  she  was  incapable  in  law  of  contracting  the  debt  for 
which  the  judgment  was  rendered. "^     Where  a  mortgage 
was  made  by  a  woman,  in  her  maiden  name,  five  days  after 
her   marriage,     and    scire  facias  was   thereafter  regularly 
prosecuted  against  her,  on  the  mortgage,  to  judgment,  and 
a  sale  was  had  in  pursuance  thereof,  it  was  held  that  the 
judgment  could  not,  in  an  action  of  ejectment,  be  impeached 
by  proof   of   her    coverture.  ^     Judgments   against  femmes 
covert  cannot  be  set  aside  or  enjoined  in  equity,  without 
establishing  such  facts  as  would  entitle  the  applicant  to 
relief  independent  of  the  fact  of  coverture,  with  the  excep- 
tions of  judgments  shown  to  have  been  obtained  through 
the  fraud  of  the  husband,  in  combination  with  another  x^er- 
son.     It  is  not  enough  that  a  married  woman  prove  facts 
sufficient  to  have  avoided  the  judgment  in  the  first  instance. 
She  must  allege  and  establish  that  she  was  deprived  of  a 
full  defense  by  the  contrivance  of  her  adversary.     The  in- 
action of  her  husband  will  not  sustain  the  charge  of  conniv- 
ance.^    Ignorance  of  her  legal  rights,  on  account  of  which 
a  femme  covert  failed  to  make  her  defense  at  law,  will  not 
entitle  her  to  relief  in  equity.  ^     In  Pennsylvania,  the  bond 
of  a  married  woman,   though  her  husband  join   in  it,    is 
void.     A  judgment  entered  on  such   bond  by  warrant  of 
attorney,  is  void;  and  so  is  the  judgment  in  scire  facias  to 
revive  such   judgment,    and   a  sale  thereunder  passes  no 
title,  c 


1  Howard  v.  North,  5  Tex.  290;  Bax- 
ter v.  Dear,  21  Tex.  17;  Spalding  v. 
■Wathen,  7  Bush.  659;  Guthrie  v. 
Howard,  32  Iowa,  51;  Wolf  v.  Van 
Metre,  23  Iowa,  397. 

sGambette  u.  Brock,  41  CaL  83. 

164: 


gHartmani;.  Osgood,51Penn.S.  120. 

4 Green  v.  Branton,  1  Dev.  Eq.  500. 

eVan  Metre  v.  Wolf,  27  Iowa,   341. 

GDorrauco  v.  Scott,  3  Whart.  309; 
Caldwell  v.  Walters,  18  Pa.  S.  79; 
Graham  v.  Long,  65  Pa.  S.  383. 


Cliap.  IX.]  LUNATICS.  §gl51-152 

^  151.  Infants. — In  Illinois,  a  decree  of  a  court  of  gen- 
eral jurisdiction,  where  the  record  shows  that  notice  was 
served  on  an  infant  defendant,  in  person,  instead  of  on  his 
guardian  as  required  bj  statute,  and  no  guardian  ad  litem 
was  appointed,  is  void.  ^  This  is,  however,  an  almost  iso- 
lated exception  to  the  current  of  authorities.  In  Kentucky, 
by  the  provisions  of  the  Civil  Code,  no  judgment  is  to  be 
rendered  against  an  infant  until  after  defense  by  a  guardian. 
Yet  a  judgment  pronounced  after  constructive  service  on  an 
infant,  without  the  appointment  of  any  guardian,  was  held 
to  be  erroneous,  but  binding  until  reversed.^  The  general 
tendency  is  to  regard  the  plea  of  infancy  as  a  personal  plea 
which  may  be  waived.^  And  v/hether  such  plea  is  inter- 
posed or  not,  a  judgment  or  decree  against  an  infant,  prop- 
erly before  the  court,  is  as  obligatory  upon  him  as  though 
he  were  an  adult,  except  in  cases  where  he  is  allowed  time, 
after  coming  of  age,  to  show  cause  against  the  judgment  or 
decree.*  If  an  absolute  decree  be  made  against  an  infant, 
he  is  as  much  bound  as  a  person  of  full  age,  and  will  not 
be  permitted  to  dispute  the  decree,  except  upon  the  same 
grounds  which  would  be  available  if  he  were  an  adult.  ^ 

§  152.  Lunatics.  —  While  an  occasional  difference  of 
opinion  manifests  itself  in  regard  to  the  propriety  and 
possibility  of  binding  femmes  covert  and  infants  by  judicial 
proceedings,  in  which  they  were  not  represented  by  some 
competent  authority,  no  such  difference  has  been  made  ap- 
parent in  relation  to  a  more  unfortunate  and  more  defense- 
less class  of  persons;  but  by  a  concurrence  of  judicial  author- 
ity, lunatics  are  held  to  be  within  the  jurisdiction  of  the 
courts.*^  Judgments  against  them,  it  is  said,  are  neither 
void  nor  voidable.  They  can  not  be  reversed  for  error  on 
account  of  defendant's  lunacy ;  the  proper  remedy  in  favor 
of  a  lunatic  being  to  apply  to  chancery  to  restrain  proceed- 


1  Whitney  v.  Porter,  23  111.  4i5. 

2  Simmons  v.  McKay,  5  Bush.  25. 

3  Blake  v.  Douglass,  27  Ind.  416. 
4"Wariug's  Heirs  v.  Reynolds,  3  B. 

Mon.  59;  Marshall  v.  Fisher,  1  Jones 
Law,  111  ;  Pond  v.  Doneghy,  18  B. 
Mon.  558;  Smith  ■».  Ferguson,  3  Met, 
Ky.  424;  Ealston  v.  Lahee,  8  Iowa, 


23;  Bennett  ti.  Hamill,  2  Scho.  &  Lef. 
575  ;  Porter  v.  Eobinson,  3  A.  K. 
Marsh,  254;  Wills i;.  Spraggin,  3  Gratt, 
567;  Smith  v.  McDonald,  42  Cal.  484. 

5  Joyce  V.  McAvoy,  31  Cal.  273. 

G  Lamprey  u.  Nudd,  9  Foster,  299; 
Wood  V.  Bayard,  63  Penn.  S.  320; 
Foster  v.  Jones,  23  Geo.  168. 

155 


g §152-153  LAW  OF  JUDGMENTS.  [Cliap.  IX. 

ings,  and  to  compel  plaintiff  to  go  there  for  justice.^  In  a 
suit  against  a  lunatic,  the  judgment  is  properly  entered 
against  liim,  and  not  against  liis  guardian.  A  lunatic  lias 
capacity  to  appear  in  court  by  attorney.  The  legal  title  to 
his  estate  remains  in  him,  and  does  not  pass  to  his  guard- 
ian. The  judgment,  to  bo  effective,  can  not,  therefore,  be 
against  any  other  person  than  the  lunatic.  - 

§  153.  Deceased  Parties.  —  Judgments  for  or  against 
deceased  persons  are  not  generally  regarded  as  void,  on 
that  account.  ^  Such  judgments  have  sometimes  been  up- 
held in  collateral  proceedings,  on  the  ground  that  their 
rendition  necessarily  implied  that  the  parties  were  then 
living;  and  that  this  implied  finding  in  support  of  judgments 
ought  not  to  be  allowed  to  be  impeached  by  evidence  not 
contained  in  the  record.*  A  suit  was  prosecuted  for  the 
benefib  of  A.,  in  the  name  of  a  nominal  plaintiff,  who  was 
dead,  without  any  objection  being  made  by  the  defendant; 
judgment  was  rendered  by  nil  dicit.  Defendant  petitioned 
for  a  supersedeas.  It  was  denied,  on  the  ground  that  the 
defendant  was  estopped  from  urging  the  death  of  plaintiff, 
by  his  failure  to  plead  it  when  he  had  an  opportunity  to  do 
so.  5  While,  in  a  case  like  this,  it  might  be  proper  to  up- 
hold the  judgment  on  the  grounds  here  taken;  and  while, 
in  other  cases,  where  the  parties  have  not  estopped  them- 
selves by  neglecting  to  make  proper  pleas,  the  judgment 
may  be  shielded  by  refusing  to  permit  any  collateral  attack 
for  the  purpose  of  showing  the  decease  of  one  of  the  par- 
ties, still,  cases  arise  where  the  death  of  a  party  appears 
upon  the  record.  Even  in  such  cases  the  judgment  is 
^^  simply  erroneous,  but  not  void.  This  is  because  the  court, 
having  obtained  jurisdiction  over  the  party  in  his  lifetime, 
is  thereby  empowered  to  proceed  with  the  action  to  final 
judgment;  and,  while  the  court  ought  to  cease  to  exercise 


1  Sternberg  v.  Schoolcraft,  2  Barb. 
153  ;  Robertson  v.  Lain,  19  Wend. 
C50;  Clark  v.  Dunham,  4  Den.  262. 

2  Walker  v.  Clay,  21  Ala.  797. 

3  Spalding  v.  Wathen,  7  Bush,  659; 
Coleman  v.  McAnulty,  16  JIo.  173; 
Camden  v.  Bobertson,  2  Scam.  508; 

156 


Sloetzell  V.  Fullerton,  44  111.  1C8; 
Case  V.  Eibelin,  1  J.  J.  M.  30;  see 
Sec.  140. 

4Carrr.  Townsend,  63  Pa.  S.  202. 

6  Powell  V,  Washington,  15  Ala. 
803, 


Chap.  IX.]  DECEASED  TAr.TIES.  §^53-154 

its  jurisdiction  over  a  party  when  he  dies,  its  failure  to  do 
so,  is  an  error  to  be  corrected  on  appeal  if  the  fact  of  the 
death  appears  upon  the  record,  or  by  writ  of  error  coram 
nobis  if  the  fact  must  be  shown  aliunde.     That  a  judgment 
against  a  person  dead  at  its  rendition,  is  valid  until  reversed 
or  set  aside  by  some  competent  judicial  authority,  and  that 
it  cannot  be  collaterally  attacked,  is  established  by  a  larger 
preponderance  of  the  authorities  than  can  be  brought  for- 
ward to  shield  a  judgment  against  a  married  woman  from 
collateral  assault  and  overthrow.     But  there  are,  neverthe- 
less, quite  a  number  of  cases  in  which  judgments  rendered 
for  or  against  a  person  then  deceased,  but  over  whom  in 
his  lifetime  the  court  had  jurisdiction,  have  been  declared 
void.  1     In  the  opinion  of  the  court  in  Ewald  v.  Corheit  (32 
Cal.  493),  language  is  employed  which  seems  inconsistent 
with  the  theory  that  the  court  retains  jurisdiction  to  pro- 
nounce judgment  against  a  party  after  his  death.     But  no 
such  question  was  before  the  court.     The  decree  under  con- 
sideration in  that  case,  though  rendered  subsequent  to  the 
death  of  one  of  the  litigants,  was  not  pronounced  until  his 
executor  has  been  made  a  i^arty  to  the  suit,  and  was  against 
the  executor  and  not  against  the  deceased.     The  decree, 
being   against  the  executor,  was  properly  held  not   to  be 
binding  on  the  heirs.     But  a  later  decision,  in  the  same 
State,  though  made  without  any  apparent  consideration  of 
the  authorities  upon  the  subject,  makes  it  clear  that  the 
Supreme   Court  deem  a  judgment  rendered  in  favor  of  a 
dead  man,  to  be  a  mere  nullity.^ 

g  154.  "  Res  inter  alios  acta  alleri  nocere  non  debet.'''  "A 
transaction  between  two  parties  ought  not  to  operate  to  the 
disadvantage  of  a  third. "^  The  application  o£  this  maxim 
to  the  law  of  judgments,  requires  that  no  person  shall  be 
affected  by  any  judicial  investigation  to  which  he  was  not  a 
party,  unless  his  relation  to  some  of  the  parties  was  such 
as  to  make  him  responsible  for  the  final  result  of  the  litiga- 


iLee  V.  Gardner,  26  Miss.  521 ;  Par- 
ker v.  Home,  38  Miss.  215;  Tarletoa 
V.  Cox,  -15  Id.  430;  Young  v.  Pickens 
4.5  Id.  553;  New  Orleans  &  C.  E.  E. 


Co.  V.  Bosworth,  8  La.  An.  80;  Nor- 
ton V.  Jamison,  23  La.  An.  102. 

-  McCreery  v.  Evcrding,  44  CaL 
286. 

^  Broom's  Maxims,  p.  858. 

1.57 


n^i 


LAW   OF  JUDGMENTS. 


[Chap.    IX. 


tiou.     It  is  a  general  rule  that  an  adjudication  takes  effect 
only  between  the  parties  to  the  judgment,  and  that  it  gives 
no  rights  to  or  against  third  parties.  ^     Though  the  above 
maxim   is  more   generally  quoted  than  the  maxim:   " Bes 
inter  alios  acta,  aliis  nee  prodest,  nee  nocet.'^     "A  transaction 
between  other  parties  neither  benefits  nor  injures  those  not 
interested,"  yet  this  latter  maxim  is  far  more  applicable  to 
judgments,  and  to  every  kind  of  estoppel  than  the  former, 
because   it   expresses  the   truth  that  no  person  can   bind 
another  by  any  adjudication,  who  was  not  himself  exposed 
to  the  j)eril  of  being  bound  in  a  like  manner,  had  the  judg- 
ment resulted  the  other  way.    The  persons  w^ho  are  directly 
parties  to  a  judgment,  can  generally  be  ascertained  by  an 
inspection  of  the  record  ;  but  this  is  not  always  the  case. 
It  may  happen  that  the  name  of  some  of  the  parties  is  in- 
correctly stated.     "The  weight  of  authority  is  that,   if  the 
writ  is  served  on  the  party  by  a  wrong  name,  intended  to 
be  sued,  and  he  fails  to  appear  and  plead  the  misnomer  in 
abatement,  and  suffers  judgment  to  be  obtained,  ho  is  con- 
cluded, and  in  all  future  litigation  may  be  connected  with 
the  suit  or  judgment  by  proper  averments;"  s   and  when 
such  averments  are  made  and  proved,  the  party  intended  to 
be  named  in  the  judgment  is  affected  as  though  he  were 
properly  named  therein.^    In  an  action  to  which  there  were 
four   defendants,  the  names  of  but  three  appeared  in  the 
margin  of  the  entry  upon  the  record,  which  recited  the  ver- 
dict of  the  jury  and  the  judgment  of  the  court.     This  was 
held  to  be  a  valid  judgment  against  all  who  were  properly 
and  technically  parties  defendant  in  the  suit,  on  the  ground, 
that  this  entry  was  to  be  construed  by  referring  to  the  pro- 
cess, pleadings  and  proceedings  in  the  action.^  The  identity 


1  Pothier,  3?art  4,  ch.  3,  $3,  art.  5; 
Society,  etc.  v.  Hartland,  2  Paine,  C. 
C.  536  ;  Cliase  v.  Swain,  9  Cal.  13G  ; 
Peters  u.  Spitzfaden,  24  La.  An.  Ill; 
Mcintosh  i\  Jarvis,  8  Upper  Canada 
Q.  B.  535;  Doe  v.  Dennison,  8  Upper 
Canada  Q.  B.  GIO ;  Clubine  v.  Mc- 
Mullen,  11  Upper  Canada  Q.  B.  250; 
Macky  v.  Coates,  70  Pa.  S.  350. 

2  National  Bank  v.  Jaggers,  31  Md. 

158 


38;  Ins.  Co.  v.  French,  18  How.  U. 
S,  409;  Smith  v.  Bowker,  1  Mass.  76; 
Oakley  v.  Giles,  3  East,  1C8  ;  Smith 
V.  Patten,  6  Taunt.  115;  Crawford  v. 
V.  Satchwell,  2  Stra.  1218;  Guinard  v. 
Heysinger,  15  IH.  288. 

3  Barry  v.  Carothers,  (5  Eich.  331. 

4 Wilson  V.  CoUins,  11  Humph. 
189. 


Chap.   IX.]  IN  SAME  CAPACITY.  ggl54-156 

of  names  in  tlie  record  of  a  former  suit  with  those  in  a 
present  suit,  prima  facie  establishes  identity  of  parties; 
but  if  the  record  fails  to  demonstrate  the  identity,  it  may 
be  shown  by  evidence  aliunde^  In  Georgia,  a  mortgage 
may  be  foreclosed  without  making  the  grantee  of  the  mort- 
gagor a  party  to  the  suit;"  but  the  judges  seem  to  be 
divided  in  opinion,  as  to  whether  such  foreclosure  is,  under 
all  circumstances,  conclusive  against  such  grantee  of  all  the 
matters  established  by  the  decree.^ 

§  155.  General  Expressions. — In  all  cases  where  the 
expression  in  the  judgment  is  general,  it  will  be  confined 
to  the  parties  served  with  process.^  Thus,  where  there  are 
two  defendants,  one  of  whom  is  served  with  process  and 
pleads,  and  the  judgment  entry  recites  that  the  parties 
came  by  their  attorneys,  it  w411  be  intended  that  no  one 
came  but  he  who  has  been  summoned  and  has  x^leaded.s 
In  Vermont,  a  record  similar  to  this  was  differently  con- 
strued. 6  In  a  later  case  in  that  State,  the  record  showed 
service  of  process  on  two  out  of  four  defendants.  The 
judgment  recital  was  "that  defendants  came  by  their  attor- 
ney." This  entry,  it  was  held,  did  not  show  an  appearance 
as  to  more  than  the  two  defendants  served.  As  to  the 
former  case,  it  was  said  to  be  supportable  only  upon  the 
assumption  that  in  an  action  where  there  were  but  two 
defendants,  the  use  of  the  plural  term  "parties,"  was  incon- 
sistent with  the  theory  that  any  less  than  two  persons  ap- 
peared. ''  If,  during  the  pendency  of  an  action,  a  nol.  pros. 
be  entered  as  to  some  of  the  defendants,  a  general  judg- 
■  ment  subsequently  taken  against  the  "defendants,"  will  be 
construed  to  include  only  those  as  to  whom  no  nol.  pros. 
was  entered.^ 

§  156.     In  Same  Capacity. — Every  person  may,  at  differ- 
ent times,  or  at  the  same  time,  occupy  different  relations, 


1  Garwood  v.  Garwood,  29  Cal.  51-i; 
Thompson  r.  Manrow,  1  Cal.  428. 

sKuowles  V.  Lawton,  18  Geo.  476. 

sGuerin  u.Danfortli,  45  Geo.  493. 

4Chester  v.  Miller,  13  Cal.  5G1; 
Edwards  v.  Toomer,  14  S.  &  M.  76; 
Miller  v.  Ewing,  8  S.  &  M.  421. 


SPuckett  V.  Pope,  3  Ala.  552. 
6Blood  I'.  Crandall,  28  Vt.  396. 
1  Hubbard  v.  Dubois,  37  Vt.  94. 
sBoyd  V.  Bayham,  5  Hump.  386. 


159 


m6 


LAW  OF  JUDGMENTS. 


[Chap.  IX. 


act  in  different  capacities,  and  represent  separate,  and  per- 
haps, antagonistic  interests.  It  is  a  rule  of  both  the  civil' 
and  the  common  hnv,  -  that  a  party  acting  in  one  right  can 
neither  be  beneiited  nor  injured  by  a  judgment  for  or 
against  liim,  when  acting  in  some  other  right.  As  familiar 
illustrations  of  this  rule,  it  is  said  that  a  judgment  against 
one  as  tutor, "  will  not  prevent  his  recovering  the  same  de- 
maud  in  his  own  right;  that  "a  woman  is  not  estopped  after 
coverture  by  an  admission  on  record  of  herself  and  her 
husband  during  coverture ;  and  an  heir  claiming  as  heir  of 
his  mother,  is  not  estopped  by  an  estoppel  upon  him  as  the 
heir  of  his  father."^  A  plaintiff,  suing  as  administrator  of 
his  wife,  is  not  affected  by  a  judgment  against  himself  in 
her  lifetime,  in  an  action  to  which  she  was  not  a  party.  ^  A 
decree  against  one  as  administrator,  on  a  bill  to  compel 
the  delivery  of  slaves  claimed  as  a  gift  from  the  intestate, 
will  not  conclude  his  rights  as  a  creditor,  on  a  bill  by  him 
against  the  former  plaintiffs,  to  set  aside  the  gift  convey- 
ance for  fraud.  ^  Nor  is  a  decree  against  the  validity  of  an 
entry,  in  a  suit  between  M.  and  A.,  any  bar  to  a  subsequent 
action  of  R.,  by  A.,  his  guarctian  and  next  friend,  against 
M.,  involving  the  validity  of  the  same  entry.  "^  The  fore- 
closure of  a  mortgage,  by  an  action  to  which  a  widow  is 
made  a  party,  in  her  character  of  executrix  and  devisee, 
does  not  affect  her  claim  for  dower  in  the  mortgaged  prem- 
ises;^ neither  does  a  foreclosure  against  herself  and  other 
heirs  of  the  mortgagee  (she  not  having  joined  in  the  mort- 
gage), no  reference  being  made  in  the  petition  to  her  right 
to  dower. ^  In  Missouri,  a  widow  is  not  estopped  from, 
claiming  lands  in  her  own  right,  by  the  fact  that  dower  had 
been  allotted  to  her  in  the  same  land,^"  nor  by  the  fact  that 
she  was  made  a  party  to  a  suit  for  partition  of  the  lands. 


ipothicr,  P.4C.  3,  $  3,  art.  4. 

22  Smith's  Leading  Cases,  589; 
Brooking  v.  Dearmond,  27  Geo.  58; 
Robinson's  Case,  5  Rep.  32  b.;  Benz 
V.  nines,  3  Kansas,  397;  Com.  Dig. 
"Estoppel"  "C." 

sPothier,  P.  4,  C.  3  §  3,  art.  4. 

4Pli.  Ev.  vol.  2,  pp.  11,  12. 

SBlakey  v.  Nowby,  6  Munf.  64. 

IGO 


GJones  1^  Blake,  2  Hill  Cli.  029. 

T Marshall  v.  Rough,  2  Bibb.  628. 

sLewis  V.  Smith,  11  Barb.  152; 
Frost  V.  Koon,  30  N.  Y.  428. 

9Moomey  v.  JMaas,  22  Iowa,  380; 
See  Benjamin  v.  Eimira  R.  R.  Co., 
49  Barb.  441,  which  contains  expres- 
sions contra, 

1'  Thompson  v.  Renoe,  12  Mo.  157, 


Chap.  IX.]  NUMEROUS  PARTIES.  §^156-157 

and  for  the  assignment  of  her  dower  therein,  which  suit 
was  prosecuted  to  judgment  and  a  decree  entered  therein, 
assigning  her  dower  and  ordering  the  land  to  be  sold.* 
These  decisions,  however,  seem  to  be  based  upon  the  idea 
that  the  widow  can  always  be  relieved  from  a  judgment 
made  against  her  when  she  was  ignorant  of  her  true  rights, 
rather  than  upon  the  theory  that  her  claims  in  the  different 
proceedings  were  by  different  rights  and  in  different 
capacities.  A  suit  by  the  president  of  the  Orphan's  Court, 
for  the  use  of  the  assignee  of  the  husband,  for  the  amount 
of  the  share  of  the  wife,  is  no  bar  to  a  recovery  in  the  name 
of  the  same  oflScer  for  the  use  of  the  wife  and  her  husband, 
as  her  trustee.-  A  judgment  against  jjlaintiff,  suing  as  the 
assignor  of  a  non-negotiable  promissory  note,  without  the 
privity  of  the  assignee,  after  the  assignment  was  made,  and 
notice  thereof  given  the  debtor,  is  no  bar  to  an  action  by 
the  same  assignor,  for  the  use  of  his  assignee,  esjoecially  if 
there  is  reason  to  believe  that  the  former  action  was  prose- 
cuted in  fraud  of  the  risjhts  of  the  assignee.^ 


^o^ 


g  157.  Humerous  Parties. — The  general  rule,  that  no 
person  can  be  treated  as  a  'party  to  a  judgment  who  was  not 
also  a  party  to  the  action,  is  subject  to  some  exceptions. 
If  a  suit  be  brought  by  A.  for  himself  and  others  not  named, 
alleging  that  they  are  a  large  number  of  persons  interested 
ixnder  a  deed  with  himself  as  purchasers  for  a  valuable  con- 
sideration, and  that  they  are  so  numerous  that  it  is  imprac- 
ticable to  bring  them  all  before  the  court,  the  decree  subse- 
quently rendered  in  the  suit  can  be  used  for  the  benefit  of 
any  of  the  unnamed  parties.*  An  insolvent  partnership 
made  an  assignment  of  its  effects  for  the  benefit  of  credit- 
ors. One  of  these  creditors  brought  an  action  in  his  own 
behalf  and  that  of  others  who  should  come  in  and  claim  the 
benefit  thereof,  against  the  assignees  for  an  accounting  and 
distribution  of  the  funds  in  their  hands.  In  this  action  a 
referee  was  appointed  with  power  to  take  and  state  the 
account  of  the  assignees,  and  to  report  the  amount  due  "Such 


1   Crenshaw  v.  Creek,  52  Mo.  101. 
?Eslielman  v.    Shuman,  13  Pa.  S. 
5G1. 


sDawsonv.  Coles,  16  Johns.  51. 
4liui-lbiit  u.  Buteuop,  27  Cal.  50. 

161 


§§157-158 


LAW  OF  JUDGMENTS. 


[Chap.  IX. 


creditors  as  sLould  como  in  inulcr  the  order  and  seek  the 
benefit  of  the  action.  Notice  to  the  creditors  was  given  by 
a  publication  made  by  authority  of  the  court,  and  request- 
ing them  to  come  in  and  exhibit  their  demands.  In  pursu- 
ance of  such  notice  creditors  came  in  and  exhibited  their 
demands,  an  account  was  taken  with  the  assignees,  the  ref- 
eree's report  was  confirmed  by  the  court,  and  the  funds  in 
tlie  hands  of  the  assignees  were  distributed  accordingly. 
These  proceedings  were  said  to  "have  been  sanctioned  as 
indispensable  to  the  distribution  of  trust  funds  and  the  set- 
tlement of  trust  estates  in  courts  of  equity;"  and  the  decree 
of  distribution  was  held  to  be  binding  upon  all  the  creditors 
of  the  assignors,  whether  they  -knew  of  the  proceedings  or 
not,  "just  as  if  they  had  been  parties  to  it,  and  their  claim 
had  been  denied  and  defeated,  unless  they  can  assail  or  at- 
tach it  for  fraud,  and  claim  its  absolute  nullity  as  to  them 
on  that  account."^  While  it  is  a  general  rule  that  ceduis 
que  trust  must  be  made  parties  to  bar  their  equitable  inter- 
ests, it  is  well  settled  that  they  need  not  be,  if  very  numer- 
ous.^ Where  real  estate  Avas  vested  in  trustees,  for  the  use 
of  two  hundred  and  fifty  subscribers,  it  was  held  to  be  un- 
necessary to  make  others  than  the  trustees  parties  to  the 
foreclosure  of  a  mortgage.^  A  similar  decision  was  made, 
where  the  trustee  for  the  holder  of  three  hundred  and  twenty 
railroad  bonds  was  sued  for  the  purpose  of  foreclosing  a 
prior  mortgage.^  But  it  seems  to  be  certain  that  the  courts 
dislike  to  proceed  in  the  absence  of  any  of  the  parties  in 
interest,  and  that  they  will  only  fail  to  order  all  parties  to 
be  brought  before  them  in  extreme  cases  where  the  diffi- 
culty of  proceeding  would  otherwise  be  very  great,  g 


§  158.     Adversary  Parties. — Parties  to  a  judgment  are 
not  bound  by  it,  in  a  subsequent  controversy,  between  each 


1  Kerr  v.  Blodgett,  48  N,  Y.  GG;  see 
also  Thompsou  v.  Brown,  4  Johns. 
Ch.  G19;  Wilder  v.  Keeler,  3  Par.  1G4; 
Egbcfts  V.  Wood,  3  id.  518;  Brooks  v. 
Gibbons,  4  id.  374;  McKenzie  v.  L'Am- 
oreitx,  11  Burb.  516. 

2  Shaw  V.  E.  E.  Co.,  5  Gray,  170; 
WiUinli  r.  Canal  Co.,   3  Green.  Ch. 

1G2 


377;  N.  J.  Franklinite  Co.  v.  Ames,  1 
Beas.  507. 

3  Van  Vechten  v.  Terry,  2  Johns. 
Ch.  197. 

4 Board  of  S.  v,  M.  P.  E.  E.  Co.,  24 
Wis.  127. 

5  Doody  u.  Higgins,  9  Hare  App,  32. 


Chap.  IX.]  ADVEESAEY  PARTIES.  .  §158 

other,  unless  they  were  adversary  parties  in  the  original 
action.     If  A.  recovers  judgment  against  B.  and  C.  upon  a 
contract,  which  judgment  is  paid  by  B.,  the  liability  of  C. 
to  B.,  in  a  subsequent  action  for  contribution,  is  still  aii 
open  question,  because,  as  to  it,  no  issue  was  made  or  tried 
in  the  former  suit.^      As  between  the  several  defendants 
therein,  a  joint  judgment  establishes  nothing  but  their  joint 
liability  to  the  plaintiff.     Which  of  the  defendants  should 
pay  the  entire  debt,  or  what  proportion  each  should  pay, 
in  case  each  is  partly  liable,  is  still  unadjudicated ;"  but  a 
judgment  against  two  joint  debtors  prevents  either,  in  a 
suit  with  the  other,  from  denying  the  existence  and  obliga- 
tion of  the  debt,  though  he  may  still  prove,  by  any  compe- 
tent evidence  in  his  power,  that  the  ivhole  burden  of  the 
obligation  should  be  borne  by  the  other.  ^  One  of  several 
plaintiffs  is  not  prevented  by  a  judgment  from  showing, 
when  called  upon  by  his  co-plaintiffs  to  contribute  his  pro- 
portion of  the  expenses  incurred,  and  that  he  had  no  knowl- 
edge of  the  institution  of  the  suit .  *   It  is  the  constant  prac- 
tice of  courts  of  equity  to  decree  between  co-defendants 
upon  proper  proofs,  and  under  pleadings  between  plaintiffs 
and  defendants,  which  bring  the  respective  claims  and  rights 
of  such  co-defendants  between  themselves  under  judicial 
cognizance.    But  the  language  of  a  decree  in  chancery  must 
be  construed  in  reference  to  the  issue  which  is  put  forward 
by  the  prayer  for  relief  and  other  pleadings,  and  which  these 
show  it  was  meant  to  decide.     Hence,  though  the  language 
of  the  decree  be  very  broad  and  emphatic, — enough,   so 
perhaps,  when  taken  in  the  abstract  merely,  to  include  the 
decision  of  questions  between  co-defendants,  yet  where  the 
pleadings,  including  the  prayer  for  relief,  are  not  framed  in 
such  a  way  as  to  bring  their  rights  before  the  court ;  or  are 
framed  with  a  view  to  litigate  the  rights  of  defendant  and 
plaintiff  between  each  other  only,  such  general  language  will 
be  held  to  apply  between  plaintiff  and  defendant  only,  and 
not  between  co-defendants.  ^  A  decree  on  a  bill  in  equity,  filed 


1  Buffington  v.  Cook,  35  Ala.  312  ; 
McCrory  v.  Parks,  18  Ohio  S.  1. 

2Admr.  of  Cox  v.  Hill,  3  Hamm. 
412;  Duncan  v.  Holcomb,  26  Ind.  378. 


3  Lloyd  V.  Barr,  11  Pa.  s.  41. 

4  Wilson  V.  Mower,  5  Mass.  407. 

5  Graham  v.  E.  E.  Co.  3  Wall.  704. 

163 


52158- 


m 


LAW   OF   JUDGMENTS. 


[Chap.  IX. 


by  the  executor  of  a  "will  against  the  residuary  legatees  to 
determine  their  distributive  shares,  fixing  the  amount  of 
the  adrancement  to  a  legatee  and  the  amount  of  his  dis- 
tributive share,  is  conclusive  evidence  of  such  amount  in 
a  suit  for  partition  of  real  estate  devised  to  the  legatees  by 
the  same  will.  ^  In  cases  like  this,  it  is  evident  that  the 
several  persons  joined  as  defendants  are  adversary  parties. 
The  only  issues  framed  in  the  case,  are,  in  respect  to  their 
relative  claims  under  the  same  instrument.  The  plaintiff, 
though  nominally  a  party,  is  indifferent  to  the  result.  As 
the  entire  contest  must  be  made  by  defendants  against  each 
other,  their  position  is  such  as  to  make  the  decree  conclu- 
sive upon  them  whenever  the  same  questions  shall  again  be 
involved. 

§  150.     Parties  must  be  Mutually  Bound. — No  party  is, 
as  a  general  rule,  bound  in  a  subsequent  proceeding  by  a 
judgment,  unless  the  adverse  party  now  seeking  to  secure 
the  benefit  of  the  former  adjudication,  would   have   been 
prejudiced  by  it  if  it  had  been  determined  the  other  way.- 
"The  operation  of  estoppels  must  be  mutual.     Both  the 
litigants  must  be  alike  concluded,  or  the  proceedings  cannot 
be  set  up  as  conclusive  upon  either."''     "It  is  essential  to 
an  estoppel  that  it  be  mutual,  so  that  the  same  parties  or 
privies  may  both   be  bound  and   take  advantage   of  it."-^ 
"  Nobody  can  take  benefit  by  a  verdict  that  had  not  been 
prejudiced  by  it  had  it  gone  contrary."^     A  verdict  and 
judgment  in  favor  of  a  trespasser,  would  not  be  conclusive 
evidence  in  favor  of  a  co-trespasser,  in  an  action  by  the  same 
plaintiff."  A  judgment  against  the  indorser,  is  not  evidence 
for  him  in  an  action  against  the  maker. ''  A  judgment  against 
the  tenant,  in  a  writ  of  entry  brought  by  an  heir,  at  the  ex- 


1  Torreyu.  Pond,  102  Mass.  355. 

SRodmoDcl  V.  Coffm,  2  Dov.  Eq. 
443;  Wood  v.  Davis,  7  Crancli.  271; 
Simpson  v.  Jones,  2  Sneed.  36. 

3  Vol.  1  Greenl.  Ev.  §  524;  Mani- 
galtu.  Deas,  1  Bai.  Eq.  283;  Burgess 
V.  Lane,  3  Greenl.  165;  Griswold  v. 
Jackson,  2  Ed.  Cb.  461;  Simpson  v. 
Pearson,  31  Ind.  1;  Huntington  v. 
Jewett,   25    Iowa,    249;    Bradford  v. 

164 


Bradford,  5  Conn.  127;  Edwards  v. 
McCurdy,  13  111.  496;  Harris  v.  Plant 
&  Co.,  31  Ala.  G39;  Wright  r.  Hazen, 
24  Verm.  143. 

4Petrie  v.  Nuttall,  11  Exc.  569. 

5  Gilbert's  Evidence,  p.  28,  cited  and 
in  W^enman  i\  MacKenzie,  5  El.  it 
BI.  447. 

cSjirague  v.  Oakes,  19  Pick.  455. 

TFenu  V.  Dugdale.  31  Mo.  580. 


Chap.  IX.]      MUST  BE  MUTUALLY  BOUND.  §159 

pense  of  the  co-heirs,  to  try  title,  cannot  be  taken  advantage 
of  by  another  of  the  heirs,  in  a  suit  against  the  tenants  for 
onesiie  profits.^    A  party  to  a  divorce  suifc,  in  which  the  bill 
was  dismissed,  cannot  use  the  decree  of  dismissal,  or  any  of 
the  findings  of  the  court  or  jury,  in  a  controversy  between 
himself  and  a  third  party,  for  the  purpose  of  establishing  any 
of   the  facts  asserted   by  such  decree   or  finding.     Thus, 
if,  in  an   application   by   a   husband   for   divorce,  on  the 
ground  of  adultery,  the  jury  find  the  allegations  of  plaintiff 
to  be  true,  and  also  find  that  he  has  been  guilty  of  a  similar 
offense,  and  his  bill  is,  on  that  account,  dismissed,  he  can- 
not, on  being  sued  for  necessaries  furnished  his  wife,  defend 
himself  by  the  finding  of  the  jury  in  respect  to  her  adultery.  2 
Neither  is  the  dismissal  of  a  bill  of  a  wife  for  divorce,  on 
the  ground  of  extreme  cruelty,  conclusive  evidence,  in  an 
action  by  a  third  person  against  the  husband  for  necessaries, 
that  the  wife  left  him  without  sufiicient  justification.^     A 
judgment  in  favor  of  one  creditor,  declaring  a  conveyance 
void  as  against  creditors,  is  not  evidence  in  a  suit  by  an- 
other creditor,  for  he  would  not  have  been  concluded  if  the 
first  suit  had  terminated  differently.*    A  conviction  upon  an 
indictment,  is  not  usually  admissible  as  evidence  in  any  civil 
action,  because  the  parties  in  the  civil  suit  are  not  gener- 
ally parties  to,  nor  mutually  bound  by  the  criminal  prosecu- 
tion.    But  if  a  bond  be  given  to  the  State  that  a  party  will 
abstain  from  committing  some  unlawful  act,  a  subsequent 
indictment  of  the  principal  and  his  conviction  thereunder, 
are,  in  a  civil  suit  by  the  State  on  the  bond,  conclusive 
evidence  against  the   principal   and  prima  faclt  evidence 
against  the  surety.^     Notwithstanding  the  self-evident  jus- 
tice and  propriety  of  the  rule  that  estoppels  must  be  mutual, 
and   that  no   man  shall   bind  another  by  an    adjudication 
which  he  is  himself  at  liberty  to  disregard,  instances  are 
not  rare  where  the  rule  has  been  denied  or  overlooked  by 
courts   and  judges,  whose  decisions  are  entitled  to   great 
respect.     Lord  Kenyon   admitted  the   record   of  a  former 
action,  in  which  the  defendants  in  the  suit  before  him  were 


1  Allen  V.  Carter,  8  Pick.  175. 

2  Needham  v.  Brenner,  12  Jur.  N. 
S.  434  &  14  W.  R.  G94. 


3Burlen  v.  Shannon,  3  ^^ray,  387. 
4Winston  v.  Starke,  12  Gratt.  137. 
5  Webbs  V.  State,  4  Cold.  199. 

1G5 


§§159-1G0  LAAY   OF  JUDGMENTS.  [Chap.  IX. 

adversary  parties,  but  •svitli  wliicli  the  plaintiff  -was  iu  no 
way  connected,  for  the  purpose  of  proving  that  the  defend- 
ants were  partners.     His  Lordship  justified  his  ruling  on 
the  ground  that  one  of  the  defendants  who  had  denied  the 
partnership  in  both  actions,  had  a  full  opportunity  to  sus- 
tain his  denial  in  the   former  action,  by  every   means   of 
proof  which  he  could  now  employ.*  In  a  case  in  New  York, 
one   of  two  heirs  or  devisees,  having   brought  an   action 
against  an  executor,  and  obtained  a  decree  establishing  the 
interests  of  both,  the  court  held  that,  though  the  other  heir 
or  devisee  might,  if  he  thought  proper,  set  up  claims  at 
variance  with  the  decree,  yet  if   he  elected   to   claim  the 
benefit  of  it,  all  its  adjudications  of  rights  and  all  its  settle- 
ment of  principles  were  conclusive  in  his  favor  against  the 
executor.  ^     Eecently  it  has  been  held  in  Maine  that  a  writ- 
ten  verdict  of  a  jury  finding  a  x^erson  to  be  the  original 
promisor  of  a  note  instead  of  the  endorser,  as  he  claimed 
to    be,   is  conclusive  against  him  in  a  litigation  with  any 
other  pariij  to  tltc  note}     In  the  circuit  court  of  the  United 
States,  a  decision  was  made  to  the  eflect  that  a  defendant 
who,  after  making  his  defense,  is  compelled  by  the  court  to 
pay  a  sum  of  money  to  plaintiff  belonging  to  another,  will 
be  protected  from  a  suit  by  the  rightful  owner;"  because 
1st.  The  equities  are  equal,  it  being  no  greater  a  hardship 
for  one  man  to  lose  his  property,  than  for  another  to  pay  a 
debt   twice;  2d.  That   the   Us  poidens   of  the  former  suit, 
being  notice  to  the  whole  world,   the  rightful  owner  was 
negligent  in  not  making  his  title  known;  3d.  The  right  of 
the  true  owner  to  recover  his  property  remains  unchanged, 
but  the  person  of  whom  he   should  recover  it,   is  he  into 
whose  possession  it  has  passed  by  direction  of  a  competent 
judicial  tribunal,  and  from  whom  a  recovery  could  be  had, 
as  in  the  cases  of  Le  Chevalier  v.  Lynch,  Dougl.  170,  and 
PhllUps  V.  Hunter,  2  H.  Bla.  402. 

g  IGO.     Suit  not  Including  all  Former  Parties. — A  diver- 
sity of  opinion  exists  in  reference  to  the  effect  of  a  judg- 


4Whatcly  V.  Menheim,  2  Esp.  COS. 
6  0'Brieu  v.   Heeney,    2    Ed.    Ch. 
246. 

166 


1  Sturtevant  v.  Eandall,  53  Maine, 
149. 

2  Mayer  v.  Foulkrod,  4  Wash.  C.  C. 
503. 


Chap.  IX.]  BETWEEN   ADDITIONAL   PARTIES.  §glG0-161 

ment  or  decree,  in  a  subsequent  action,  in  wliicli  some,  but 
not  all,  of  tlie  adversary  parties  to  such  judgment  or  decree 
are  litigants.  Parke  B.,  in  the  course  of  the  argument 
before  him  in  Christy  v.  Tancred  (9  M.  &  W.  p.  438),  said: 
"There  is  no  authority  that  a  Judgment  against  A.  and  B. 
jointly,  is  evidence  in  an  action  against  xi.  alone,  because  it 
may  have  proceeded  on  an  admission  of  B.,  which  might  or 


might  not  be  evidence  against  A. 


according  to   circum- 


stances." On  the  other  hand,  it  is  stated,  with  the  utmost 
confidence,  that  a  judgment  in  the  case  of  A.  v.  B.  and  C, 
will  be  allowed  to  be  set  up  as  an  estoppel  in  a  suit  between 
A.  and  B. ;  and  that  this  furnishes  an  exception  to  the  general 
rule  that  the  judgment  must  have  been  between  the  same 
parties.^  This  exception  seems  to  be  consistent  with  the 
general  rule.  It  violates  none  of  the  principles  usually 
applied  to  estoppels;  but,  on  the  contrary,  is  supported  by 
those  principles  and  the  considerations  of  public  policy  on 
which  they  are  based.  The  former  adjudication  ought  not 
to  be  any  less  conclusive  on  the  adverse  parties  A.  and  B,, 
because  other  persons  shared  with  them  the  advantages  and 
disadvantages  of  the  former  suit.  The  matter  could  have 
been  as  efficiently  litigated  as  though  A.  and  B.  were  the 
sole  parties  in  interest  ;  and  the  opportunity  for  the  settle- 
ment of  their  controversy  having  been  so  given,  there  is  no 
reason  why  their  controversy  should  be  re-opened. 

g  161.  Between  Additional  Parties.  —  A  difference  of 
opinion  is  also  manifest  in  relation  to  the  effect  of  a  judg- 
ment in  a  siibsequent  action,  in  which  other  persons  as  well 
as  the  parties  to  the  judgment  are  litigants.  According  to 
the  opinion  given  in  2  Smith's  Leading  Cases,  p.  683  :  "  A 
judgment  against  a  co-contractor,  co-obligor,  or  copartner, 
will  not  be  evidence  where  another  is  joined."  This  seems, 
in  most  cases,  to  be  perfectly  reasonable.  Otherwise,  the 
party  now  joined  will  either  be  benefited  by  a  decision 
which  could  not  have  prejudiced  him,  if  it  had  gone  the 
other  way,  or  bound  hj  an  adjudication  which  ho  had  no 
opportunity  to  resist.    But  it  has  been  held  that  a  judgment 


1  Lawrence  u.  Hunt,   10  Wend.  80; 
Ehle  V.  Bingham,  7  Barb.  494;  Dowy 


V.  McMichael,  C  Pai.  139;  Thompson 
V.  Eoberts,  24  How.  U.  S.  233. 


167 


g^lGl-lG2  LAW  OF  JUDGMENTS.  [Cliap.  IX. 

in  favor  of  A.  is  admissiblo  evidence  in  a  subsequent  con- 
troversy involving  the  same  questions,  and  in  which  A.  and 
B.  are  phiintiffs,  though  B.,  then  being  disinterested,  was  a 
witness  at  the  former  trial/  If  an  action  be  brought  against 
a  portion  of  several  joint  promisors,  and  they,  waiving  the 
non-joinder  of  the  others,  proceed  to  trial  and  recover  on 
the  merits,  the  judgment  is  admissible  in  favor  of  the  de- 
fendants in  a  future  action  against  all  the  promisors  on  the 
same  promise. 2  In  this  instance  it  happens  that  persons 
not  bound  by  a  former  suit  are  entitled  to  avail  themselves 
of  its  benefits,  because  their  liability  cannot,  against  their 
objection,  continue  after  that  of  their  co-contractors  has 
ceased;  and  because  the  defendants  in  the  former  suit  must 
either  be  deprived  of  the  fruits  of  their  litigation,  or  those 
fruits  must  also  be  given  to  persons  who  were  not  parties  to 
the  suit.  Besides,  if  the  plaintiff  established  his  cause  of 
action  against  the  joint  promisors  sued,  he  could  not,  under 
the  operation  of  the  law  of  merger,  recover  against  any 
other  of  the  promisors.  To  deny  the  effect  of  the  judg- 
ment as  an  estoppel  in  a  future  action  against  all  the  prom- 
isors, would  place  him  in  a  better  position  than  if  the 
judgment  had  been  in  liisjavor.  For  the  reason  that  a  joint 
debt  can  not  be  severed,  it  may  happen  that  a  party  is  not 
prejudiced  by  a  judgment  by  which  he  would  otherwise  be 
bound.  Thus  where,  in  an  action  against  A.,  a  town  being 
summoned  as  trustee,  answered  that  it  o^yed  A.  and  B. ;  and 
judgment  was  thereupon  entered  up  against  it  for  the 
amount,  it  was  held  this  judgment  cannot  defeat  a  subse- 
quent action  by  A.  and  B.  for  the  same  amount.^ 

PAET  II.— OF  PEIVIES. 

g  1G2.  Privies. — "The  term  privity  denotes  mutual  or 
successive  relationship  to  the  same  rights  of  property."* 
This  relationship  is  produced  either  by  operation  of  law, 
by  descent,  or  by  voluntary  or  involuntary  transfers  from 


1  Blakemore  v.  Canal  Co.,  2  C.  M. 
&  B.  133. 

2  French  v.  Neal,  24  Pick.  55. 
sHawes  v.  Walthan,  18  Pick.  451. 
4Greenl.  Ev.  §  IS'J.     A  privy  is  one 

168 


liolding  Tinder  a  party  litigant  and 
deriving  title  subsequent  to  the  com- 
mencement of  the  suit.  Ilunt  1;. 
Haven.  52  N.  H. 


Chap.  IX.]  PRIVIES.  glG2 

one  person  to  another.     Hence  privies  have  from  an  early 
period  in  the  history  of  the  common  law  been  classified  as : 

Privies  in  law,  as  lords  by  escheat,  tenant  by  courtesy, 
tenant  in  dower,  executor  or  administrator,  the  incumbent 
of  a  benefice,  and  all  others  that  come  in  by  act  of  the  lav/; 

Privies  in  blood,  as  heirs  and  co-parceners; 

Privies  in  estate,  as  where  there  is  a  mutual  or  successive 
relationship  to  rights  of  property  not  occasioned  by  descent 
nor  by  act  of  law.  ^ 

Neither  this,  nor  any  other  classification  of  privies,  is  of 
any  considerable  importance  in  considering  the  operation 
of   judgments.     All  privies  are   in   effect,  if  not  in  name, 
privies  in  estate.     They  are  bound  because  they  have  suc- 
ceeded to  some  estate  or  interest  which  was  bound  in  the 
hands  of  its  former  owner;  and  the  extent  of  the  estoppel, 
so  far  as  the  privy  is  concerned,  is  limited  to  controversies 
affecting  this  estate  or  interest.     The  manner  in  which  the 
estate  was  lawfully  acquired  neither  limits  nor  extends  the 
operation  of  the  estoppel  created  by  a  former  adjudication, 
and  is  therefore  immaterial.     It  is  well  understood,  though 
not  usually  stated  in  express  terms,  in  works  upon  the  sub- 
ject, that  no  one  is  privy  to  a  judgment  whose  succession 
to  the  rights  of  property  thereby  affected,  occurred  pre- 
viously to  the  institution  of  the  suit.     A  tenant  in  posses- 
sion prior  to  the  commencement  of  an  action  of  ejectment 
cannot  therefore  be  lawfully  dispossessed  by  the  judgment 
unless  made  a  party  to  the  suit."     The  assignee  of  a  note  is 
not  affected  by  any  litigation  in  reference  to  it,  beginning 
after  the  assignment.^     No  grantee  can  be  bound  by  any 
judgment  in  an  action  commenced  against  his  grantor  sub- 
sequent to  the  grant,  otherwise  a  man  having  no  interest  in 
property,  could  defeat  the  estate  of  the  true  owner.  *     The 
foreclosure  of  a  mortgage,  or  of  any  other  lien,  is  wholly  in- 
operative upon  the  rights  of  any  person  not  a  party  to  the 


1  2  Coke  Litt.  352  b. 

Ph.  Ev.  Vol.  2,   pp.   13,    14,    Mr. 

Greenleaf  acids  the  class.  Privies  by 
representation,  in  which  he  includes 
executors  and  administrators. 

2  Sampson  v.  Ehleyer,  22  Cal.  200; 


£a; par fe  Reynolds,  1  Cal.  499;  Goerges 
V.  Hufschmidt,  44  Mo.  179;  Garrison 
V.  Savignac,  25  Mo.  47. 

3  Powers  V.  Heath's  Admr.  20  Mo. 
319. 

4Winslow  v.  Grindal,  2  Greenl.  64. 

169 


g§lG2-lG3  LAW  OF  JUDGMENTS.  [Cllflp.  IX. 

suit,  Avlietlier  sucli  person  is  a  grantee/  judgment  creditor,  2 
attachment  creditor, ^  or  other  lien  holder.*  A  judgment  of 
freedom  in  favor  of  a  woman  does  not  establish  the  status 
of  her  children  preyiously  born.  The  right  of  property  in 
the  children,  if  vested  in  some  person  at  their  birth,  could 
not  be  divested  by  any  proceeding  to  which  he  was  not  a 
party.  ^ 

g  163.  Administrators  and  Executors. — A  judgment 
against  an  administrator  is  binding  on  the  creditors  of  the 
estate.  '^  If,  in  an  action  by  an  administrator  against  the 
widow  for  property  claimed  as  assets  of  the  estate,  she 
recover,  the  judgment  in  her  favor  is,  in  the  absence  of 
fraud,  conclusive  on  the  creditors.''  A  decree  against  an 
executor  is  binding  on  an  administrator  de  ho7iis  non^  ac- 
cording to  some  of  the  authorities,  but  the  preponderance 
of  the  decisions  on  the  subject  is  to  the  effect,  that  there  is 
no  privity  between  an  executor  or  administrator  and  an  ad- 
ministrator de  bonis  non,  and  that  a  judgment  against  one 
is  not  evidence  against  the  other  ;^  and  that  the  recovery  of 
judgment  by  an  administrator  is,  after  his  death,  no  bar  to 
an  action  by  his  successor.'"  If  letters  of  administration  are 
gi-anted  in  different  States  to  different  persons,  there  is  no 
privity  between  such  administrators.  A  judgment  obtained 
against  one  will  furnish  no  cause  of  action  against  the  other 


"tD 


to  affect  assets  in  the  hands  of  the  latter."  And  the  con- 
verse of  this  proposition  is  true,  for  a  judgment  obtained 
by  one  of  the  administrators  can  not  be  asserted  as  a  cause 
of  action  by  the  other. '^ 

Between  the  real  and  personal  representatives  of  a  de- 
ceased person   there   is   no   privity.      Hence  a  judgment 


1  Brush  V.  Fowler,  36  111.  58. 

2Bramard  v.  Cooper,  IO'N.  Y.  356. 

3Lyon  V.  Sanford,  5  Conn.  544. 

4  Smith  ^^  Claimants,  4  Nov.  254. 

sBloodgoodu.  Grasey,  31  Ala.  575; 
Davis  V.  Wood,  7  Cranch.  271. 

6  Stone  u.  Wood,  16111,  177. 

■J Pickens  v.  Yarborough,  30  Ala. 
408. 

sManigalt  v.  Deas,  1  Bai.  Eq.  283. 

» Thomas  v.  Stearns,  33  Ala.  137  ; '  thai  v.  Eenich,  44  111.  207 

170 


Kogers  v.  Grannis,  20  Ala.  247;  "Wen- 
rick  V.  McMurdo,  5  Band.  51. 

WNote  259  to  Ph.  on  Ev.  by  C.  H. 
&  E.;  Grout  v.  Chamberlain,  4  Mass. 
611;  Allen  v.  Irwin,  1  S.  &  B.  549; 
Barnhurst  v.  Yelverton,  Yelv.  83. 

"McLean  v.  Meek,  18  How.  U.  S. 
p.  IG;  Stacy  v.  Thrasher,  6  How.  U. 
S.  44;  Brodie  v.  Bickley,  2  Baw.  431. 

i^Story's  Confl.  Laws,  $  522;  Kosen- 


Chap.  IX.]        ADMINISTRATORS  AND   EXECUTORS.  §1G3 

against  an  administrator  or  executor  is  never  conclusive 
against  the  heirs  or  devisees/  and  a  judgment  for  or  against 
an  heir  or  devisee  has  no  effect  upon  an  administrator  or 
executor.^     A  decree  against  an  executor  is  not  binding  on 
the  heir,   "because  he  is  not  a  party  to  the  suit,  can  not 
offer  testimony,  adduce  evidence  in  opposition  to  the  claim, 
nor  appeal  from  the  judgment."^     The  allowance  of  a  claim 
against  an  estate  by  the  administrator  and   the   probate 
judge  has  the  same  effect  as  a  judgment.     But  as  the  heirs 
are  not  bound  by  a  judgment  against  the  administrator, 
they  are  at  liberty  to  dispute  any  claim  so  allowed,  because 
the  allowance  has  no  higher  effect  than  a  judgment.     If  the 
allowed  claims  are  made  the  basis  on  which  to  obtain  an 
order  to  sell  the  real  estate,  the  heirs  are  not  precluded 
from  contesting  them  as  freely  as  though  they  had  acquired , 
none  of  the  properties  of  a  judgment ;  for,  as  to  the  heirs, 
they  are  not  yet  o-es  judicata.*    But  a  judgment  against  the 
personal  representative  is  'prima  fade  evidence  against  the 
realty.'     In  proceedings  against  heirs  by  scire  facias,  to 
revive  a  judgment  recovered  against  the  executors,  and  to 
make  it  a  charge  against  real  estate,  the  onus  of  proof  in 
respect  to  the  justness  of  the  claim  is  thrown  upon  the 
heirs.*^     It  is  clear,  however,  that  such  proceedings  do  not 
preclude  a  defense  upon  original  grounds,  except  where  the 
administrator  or  executor  is  also  the  heir  or  devisee.^   For, 
though  in  this  case  a  party  claims  in  two  capacities,  a  judg- 
ment against  him  in  one  capacity  is  also  conclusive  against 
him  in  the  other.     He  represents  the  interests  of  one  and 
the  same  person;  and  has  full  opportunity,  in  a  suit  against 
himself  as  the  personal  representative,  to  protect  his  rights 
as  successor  to  the  realty.     It  is  not  intended  that  one  so 
situated,  should  have  the  right  to  be  twice  heard  upon  the 

1  McCoj^  V.  Nichols,  i.  How.  Miss.  1     4Beckett   v.    Selover,   7   Cal.   215  ; 


31  ;  Cowen  '&  Hill  &  Edwards,  note 
259  to  Ph.  Ev.  ;  Vernon  v.  Valk,  2 
Hill  Ch.  257  ;  Collinson  v.  Owens,  6 
G.  &  J.  4 ;  Robertson  v.  Wright,  17 
Gratt.  534 ;  Early  v.  Garland,  13 
Gratt.  1. 

sDorr  v.  Stockdale,  19  Iowa,  269. 

sGarnett  v.  Macon,  6  Call.  308. 


Estate  of  Hidden,  23  Cal,  362;  Stone 
U.Wood,  IGIIL  177. 

6  Steele  v.  Liniberger,  59  Pa.  S.  308. 

6  Sergeant's  Heirs  v.  Ewing,  36  Pa. 
S.  156. 

1  Stewart  u.  Montgomery,  23  Pa.  S. 
410. 

171 


§§lG3-lG3a  LAW  of  judgjeents.  [Cheap.  IX. 

same  controversy.  One  who  suffers  an  administrator  who 
has  no  authority,  to  sue  and  to  recover  judgment  for  a  debt 
duo  the  estate,  and  then  pays  the  judgment,  can  not  thereby 
defeat  an  action  brought  by  an  administrator  having  the 
right  to  sue.^  A  ^vi'itten  agreement  to  convey  Lands  is  a 
covenant  real.  If  broken  in  the  lifetime  of  the  covenantee 
it  passes  to  his  personal  representatives  after  his  death, 
though  he  had  commenced  an  action  for  its  specific  execu- 
tion. The  revival  of  the  suit  by  the  heirs,  and  their  obtain- 
ing a  decree  in  it  for  the  performance  of  the  agreement, 
in  nowise  affects  the  administrator.  He  may  afterward 
recover  damages  for  the  breach  of  the  contract  to  convey. 
In  such  a  case,  there  might  be  a  decree  in  favor  of  the  heirs 
for  specific  execution,  saving  the  rights  of  the  creditors:  but 
the  personal  representative  is  an  indispensable  party,  whose 
riorhts  cannot  be  affected  if  he  be  omitted.^  As  there  is  no 
privity  between  the  personal  representative  and' the  heir, 
the  latter  can  not  have  the  advantage  of  an  adjudication  in 
favor  of  the  former.  Hence  a  perpetual  injunction  obtained 
by  an  executor  to  prevent  K.  from  prosecuting  any  action 
for  the  recovery  of  the  arrears  of  an  annuity  against  such 
executor  or  other  representative  of  the  testator,  does  not 
prohibit  E,  from  prosecuting  such  action  against  the  heirs.  ^ 

?  lG3a.  The  Relation  bet^ween  the  Heirs  and  the 
Administrator  of  a  deceased  person  seems  to  be  different 
in  California  from  that  recognized  elsewhere.  The  act 
to  regulate  the  settlement  of  the  estates  of  deceased 
persons  provides  that  the  administrator  may  maintain  an 
action  for  the  recovery  of  property,  real  or  personal.  An 
action  of  ejectment  having  been  brought  by  an  admin- 
istrator, and  judgment  having  been  rendered  therein, 
the  question  arose  as  to  the  effect  of  this  judgment  upon 
the  heirs  of  the  deceased.  The  court  held  the  judgment 
to  be  binding  for  the  following  reasons :  ' '  The  principle 
of  law  upon  which  the  estoppel  rests  has  reference  to 
the  fact  that,  in  the  former  action,  the  hostile  titles  were  di- 


i  Pond  V.  Makepeace,  2  Met.  Mass. 
p.  114. 

172 


2  Combs  V.  Tarlton's  Admr.,  2  Dana, 
454. 

3  Dale  V.  Eosevelt,  1  Pui.  Ch.  35, 


Chap.  IX.]  HEIB  AND  ADMINISTRATOR.  §lG3a 


Ig- 


rectly  opposed  before  the  court  rendering  the  former  judj 
ment,  and  that  the  superiority  of  the  one  over  the  other  was 
ascertained  and  fixed  by  that  judgment.     That  an  admin- 
istrator appearing  in  an  action  involving  the  interests  of  the 
estate,  represents  as  well  the  heirs  as  the  creditors  of  the 
deceased  is  well  settled.     But,  he  represents  not  only  the 
interest  of  heirs  and  creditors,   but  also  the  title  which  tho 
deceased  had  at  the  time  of  his  death.     "When,  therefore, 
in  an  action  of  ejectment,  an  administrator,  seeking  to  re- 
cover the  real  estate  of  his  intestate,  alleges  upon  the  record 
the  seizin  of  that  intestate,   he  thereby  tenders  an  issue  di- 
rectly upon  the  title  to  the  premises;  if  issue  be  joined  by 
the  defendant  upon  this  point,  and  judgment  be  rendered,  it  is 
necessarily  an  adjudication  that  ilie  title  of  the  intestate  was  or 
was  not  superior  to  the  title  set  up  by  the  defendant  in  the 
action."     After  proceeding  further  to  show  that  the  issues 
in  the  action  by  the  administrator,   are  the  same  as  the 
issues  in  any  action    subsequently   brought,  by  the   heir 
relying  upon  title  derived  from  his  ancestor,  the  court  con- 
cludes, that  "if  upon  an  action  brought  by  the  administrator 
against  a  defendant  in  possession  of  real  property,  upon  the 
allegation  of  seizin  in  the  deceased  at  the  time  of  his  death, 
it  be  adjudged  that  the  intestate  was  not  seized,  or  that  the 
defendant  had  the  better  title,  the  legal  consequence  follows 
tliat  the  administrator,   the  heirs  and  creditors,    and    all 
persons  subsequently  asserting  title  as  having   vested   in 
^themselves  by  reason  of  the  death  of  the  intestate,  are  alike 
estopped  to  deny  the  superiority  of  the  title  of  the  defend- 
ant adjudicated  in  the  former   action."  ^    The  decision  of 
this  case,  like  that  of  all  other  controversies  in  reference  to 
estoppel  by  judgment,   required  the  determination  of  two 
questions:    1st.  Have  the  issues  here  sought  to  be  litigated 
been  before  litigated  and  settled?  and  2d,  if  so,  was  the 
litigation  between  the   present  litigants   or   persons  wdth 
whom  they  are  in  privity?    The  first  question  was  carefully 
considered   by  the   court,    and   was,    no   doubt,    correctly 
determined.     The  second  question  was  disposed  of  by  as- 
suming   "That  an   administrator  appearing  in  an  action 
involving  the  interests  of  the  estate,  represents  as  well  the 

1  Cunniughara  v.  Ashlej',  decided  January  term,  1873. 

173 


§163«-165  LAW  OF  JUDGMENTS.  [Chap.  IX. 

heira  as  tlie  creditors  of  the  deceased,  is  well  settled."  In 
view  of  the  unanimity  of  the  numerous  decisions  cited  in 
the  preceding  section,  all  holding  that  no  privity  exists  be- 
tween an  administrator  and  an  heir  of  the  deceased,  we  are 
at  a  loss  to  understand  when  and  Avhere  the  contrary  rule 
assumed  by  the  court  became,  as  the  court  states,  well 
settled. 

§  1G4.  Principal  and  Agent. — Agents  and  principals  do 
not,  as  such,  have  any  mutual  or  successive  relationship  to 
rights  of  property.  They  are  not  in  privity  with  each 
other.  If  the  principal  is  ever  bound  b}'^  a  judgment  against 
his  asrent,  it  is  in  those  cases  in  which  he  authorized  the  in- 
stitution  of  the  suit,  of  Avhich  we  shall  treat  in  the  latter 
part  of  this  chapter.  An  action  by,  and  in  the  name  of  an 
agent  for  trespass  for  taking  coin  from  his  possession  and 
converting  it,  in  which  the  jury,  finding  that  the  property 
belonged  to  the  principal,  and  therefore  gave  the  plaintiff 
nominal  damages,  is  no  bar  to  an  action  by,  and  in  the 
name  of  the  principal,  unless  it  can  be  shown  that  the 
former  suit  was  brought  under  his  direction  and  for  his 
benefit.'  A  note  transferred  by  delivery,  was  by  the  trans- 
feree placed  in  the  hands  of  an  agent  with  orders  to  demand 
payment,  and,  if  necessary,  to  place  it  in  the  hands  of  an 
attorney  for  collection  by  suit.  Payment  not  being  made 
upon  demand,  the  note  was  given  to  an  attorney.  He,  on 
account  of  his  ignorance  of  its  ownership,  sued  in  the  name 
of  the  agent;  and  the  suit  was  successfully  defended  on  a 
plea  of  set-off  against  the  plaintiff.  The  true  owner,  having 
no  notice  of  this  action,  was  permitted  to  afterward  re- 
cover in  his  own  name.'' 

g  165,  Assignees  and  Alienees. — The  person  who  pur- 
chases property,  real  or  personal,  is  entitled  to  the  benefits 
and  subjected  to  the  disadvantages  which,  by  the  operation  of 
final  adjudications,  had  attached  to  the  property  in  the  hands 
of  its  former  owner.  A  mortgagee  having  commenced  an 
action  for  the  possession  of  the  mortgaged  premises,  was 
opposed  by  the  mortgagors  setting  up  the  defense  of  usury. 

1  Pico  r.  Webster,  12  Cal.  1-iO.  |      ^  Lawrence  v.  Ware,  37  Ala.  553. 

171 


Chap.  IX.]  GARNISHEES.  §§165-167 

Failing  in  this  defense,  the  mortgagor  conveyed  to  a  third 
person  who  brought  a  writ  of  entry  against  the  mortgagee, 
and  sought  to  support  his  action  by  proof  of  the  same  usury 
which  had  been  presented  as  a  defense  in  a  former  suit. 
Whereupon  it  was  held  that  the  former  judgment  was  an 
estoppel  running  with  the  land,  and  preventing  the  grantee 
of  the  mortgagor  from  prevailing  in  any  action  brought  on 
the  title  acquired  by  his  conveyance.^  A  verdict  and  judg- 
ment against  ixfemme  sole  will  be  binding  on  her  future  hus- 
band, so  far  as  he  represents  her  person  or  succeeds  to  her 
estate."  On  the  other  hand,  the  grantee  of  real  estate, 
though  a  witness  on  the  trial  of  the  former  cause,  may 
assert  the  judgment  in  favor  of  his  grantor  in  reference  to 
the  real  estate,  as  an  estoppel.^  And  a  judgment  against  a 
claimant,  upon  the  trial  of  the  rights  of  personal  property 
levied  under  execution,  is  conclusive  evidence  against  such 
claimant,  in  a  subsequent  controversy  between  him  and  the 
purchaser  at  the  execution  sale.* 

§  166.  Bailors  and  Bailees. — The  bailor  and  bailee  both 
have  such  an  interest  in  the  property  as  authorizes  either  to 
maintain  an  action  for  its  injury  or  conversion.  A  judg- 
ment against  a  bailor  in  an  action  in  reference  to  the  prop- 
erty, is  a  bar  to  any  subsequent  suit  by  the  bailee.^  A 
recovery  and  satisfaction  by  either,  is  a  bar  to  an}^-  subse- 
quent suit  by  the  other;  but  a  recovery  and  satisfaction  in 
an  action  commenced  by  the  bailee  is  said  to  be  no  defense 
to  an  antecedent  action  in  the  name  of  the  bailor.  ^  A  bailee 
delivering  goods  to  a  third  person,  believing  him  to  be  the 
owner,  may  avail  himself,  in  any  action  by  the  bailor,  as  an 
estoppel  of  a"  judgment  against  the  bailor,  in  an  action 
wherein  he  sought  to  recover  the  same  goods  from  the  per- 
son to  whom  the  bailee  had  delivered  them.''' 

§167.  Garnishees.  —  "Where  one  is  by  garnishment 
involuntarily  made  a  party  to  a  suit  in  which  he  has  no  per- 


1  Adams  v.  Barnes,  17  Mass.  365. 

2  Hawkins  v.  Lambert,  18  B.  Monr. 
99. 

3  Ph.  Ev.,  vol.  2,  p.  15-16. 

*  Shirley  v.  Fearne,  33  Miss.  653. 


5  Green  v.  Clark,  12  N.  Y.  313. 

6  Steamboat  v.  McCraw,  31  Ala.  C59. 
T  Burton  v.  AVilkinson,  18  Vt.   186. 

Bates  V.  Stanton,  1  Duer,  79. 

175 


§§1G7-169  LAW  OF  JUDGMENTS.  [CLap.  IX. 

sonal  interest,  he  is  fully  protected  by  tlie  proceedings  in 
law,    j^rovided   he   acts  in  obedience  to  the  orders  of  the 
court,    in   the   surrender   and   payment    of    the    property 
attached."'     But  a  judgment  against  a  garnishee  is  never 
conclusive  against  the  principal  that  the  amount,  for  which 
the  garnishee  has  been  made  liable,  is  the  full  amount  due 
from  him.     Otherwise  a  garnishee,  by  confessing  part  of  the 
debt,  could  avoid  payment  of  the  residue.  He  will,  in  no  case, 
be  protected  by  the  judgment  beyond  the  amount  it  required 
him  to  pay;'  and  this  is  the  rule  applied  to  judgments  against 
a  trustee.^     But  a  judgment  for  or  against  a  garnishee,  in 
an  attachment  issued  in  favor  of  one  creditor,  is  not  bind- 
ing on  any  other  attaching  creditor.     Between  the  two  cred- 
itors there  is  no  privity.*     After  a  suit  is  begun,  and  a  per- 
son is  summoned  as  the  trustee  of  the  defendant,  the  plaint- 
iff has  the  right  to  litigate  the  question  of  the  trustee's  in- 
debtedness,   unless   some   litigation   has   been   previously 
pending  in  reference  thereto.      Therefore,   a  judgment  in 
favor  of  the  trustee  in  an  action  betAveen  him  and  the  de- 
fendant, is  not  evidence  against  plaintiff  to  prove  that  the 
party  summoned  as  trustee  was  not  indebted  to  the  defend- 
ant when  summoned,  except  the  judgment  be  the  result  of 
a  suit  pending  before  the  service  of  the  trustee  process. •' 

g  1G8.  Ancestors  and  Heirs. — An  heir  is  in  privity  with 
his  ancestor.  Therefore  a  verdict  for  or  against  the  ances- 
tor is  evidence  for  or  against  the  heir,  in  controversies  in 
relation  to  property  descended  from  the  ancestor  to  the 
heir."  No  such  privity  exists  between  heirs  and  devisees. 
A  decree  against  the  former  establishing  that  a  conveyance 
of  certain  lands  was  made  by  the  ancestor,  has  no  effect 
upon  the  rights  of  the  latter. '' 

§  1G9.  Lessor  and  Lessee. — The  lessee  and  his  assignees 
are  in  privity  with  the  lessor  and  his  successors  in  interest. 


1  Herman  on  Estoppel,  §  119. 

2  Barton  v.  Allbright,   29  Ind.  489; 
Tams  V.  Bullitt,  35  Pa.  S.  308. 

sGroves  v.  Brown,   11  Mass.  334; 
Browu  V.  Dudley,  33  N.  H.  511. 
4 Wheeler  v.  Aldricli,  13  Gray,  51; 

17G 


Breading  v.  Siegworth,  29  Pa.  S.  396; 
Tams  V.  Bullitt,  35  Pa.  S.  308. 

5  Webster  v.  Adams,  58  Maine,  317. 

cLock  V.  Norboue,  3  Mod.  112. 

iCowart  V.  Williams,  34  Geo.  167. 


Cliap.  IX.]  LESSOR  AND  LESSEE.  gl69 

Where  an  action  of  ejectment  was  maintained  by  the  as- 
signee of  the  lessor,  against  the  assignee  of  the  lessee,  for 
non-payment  of  rent,  under  a  lease  containing  a  covenant  for 
re-etitry,  the  judgment  was  held  to  be  a  bar  to  any  recov- 
ery in  any  action  by  a  XDarty  claiming  under  the  purchaser 
at  a  foreclosure  sale,  under  a  mortgage  executed  by  the 
assignee  of  the  lessee,  subsequent  to  the  execution  of  the 
lease,  but  prior  to  the  commencement  of  the  ejectment  sujjb; 
the  decree  of  foreclosure  being  entered  after  the  suit  in 
ejectment  was  brought,  but  before  it  terminated/  If  a 
lessee  bring  an  action,  in  respect  to  the  lands  leased,  with- 
out the  direction  or  authority  of  the  lessor,  the  latter  is  not 
bound  by  the  result  of  the  suit,  and  therefore  can  not  bind 
another  by  it.'  The  landlord  is  not,  in  general,  affected  by 
any  litigation  against  or  in  favor  of  his  tenant  in  respect  to 
the  demised  premises;  but  if  the  issue  is  such  as  involves 
the  lessor's  title,  and  he  assumes  the  defense  or  the  prose- 
cution of  the  suit,  the  judgment  operates  upon  his  title  as 
though  he  were  a  nominal  party  to  the  action.^  In  some 
cases  the  law  has  been  held  otherwise.  In  South  Carolina, 
the  landlord  is  not  bound  by  a  judgment  against  his  tenant, 
though  the  tenant  set  up  the  landlord's  title,  and  the  land- 
lord was  present  in  court  at  the  trial  assisting  the  tenant, 
and  though  it  is  made  to  appear  that  his  efforts  were  in  no 
way  impeded  by  the  tenant,  and  full  opportunity  was  given 
the  landlord  to  examine  and  cross-examine  the  witnesses, 
because  if  he  had  been  a  defendant  it  might  have  caused 
some  change  in  the  jury,  or  in  the  admissibility  of  evidence, 
or  have  in  some  manner  affected  the  result.*  In  another 
case,  a  judgment  against  a  tenant  after  a  defense  conducted 
by  the  landlord  was  held  admissible,  but  not  conclusive, 
against  the  latter.^  "Upon  the  ground  that  the  lessor  of 
plaintiff  and  the  tenant  are  substantially  real  parties  to  an 
ejectment;  a  judgment  in  ejectment  is  admissible  evidence 
in  an  action  for  mesne  profits,  and  this,  whether  the  action 
be  brought  by  the  nominal  plaintiff  or  by  the  lessor  of  this 


1  Bennett  v.  Couclaman,  48  Barb.  73. 
SWeuman  v.   Mackenzie,    5  El.  & 
Bl.  447. 

sYalentine  v.  Muhoney,  37  Cal,  389. 

(12)  177 


4 Samuel  v.  Dinkins,  12  EicL.  S.  C. 
172. 

5  Chirac  v.  Keinecker,  2  Pet,  617. 


g§169-171  LAW  OF  JUDGMENTS.  [Chap.  IX. 

plaintiff,  and  whether  the  judgment  be  upon  \erdict  or  by 
default.'" 

§  170.  Offices. — Successor  and  predecessor,  in  relation 
to  offices,  are  considered  to  be  in  privity  with  each  other 
like  heir  and  ancestor.  A  judgment  for  or  against  the  in- 
cumbent, concerning  the  rights  and  privileges  of  his  office, 
is  therefore  admissible  as  evidence  for  or  against  his  suc- 
cessors. ^  A  judgment  in  any  controversy  affecting  the 
rights  of  any  person  to  hold  an  office,  is  conclusive  upon  the 
rights  of  any  other  person  claiming  through  or  under  him 
whose  rights  have  been  adjudicated.^  But  whenever  the 
title  to  an  office  may  be  drawn  in  question  by  different  per- 
sons acting  in  different  rights,  a  judgment  against  one  is 
not  admissible  against  the  other.  Judgment  in  favor  of  a 
defendant,  upon  an  information  in  the  nature  of  a  quo  icar- 
ranto,  filed  by  the  prosecuting  attorney  of  a  county  upon  the 
relation  of  an  individual,  is  no  bar  to  a  subsequent  informa- 
tion of  a  similar  nature,  filed  by  the  Attorney-General  in 
the  exercise  of  a  discretion  given  him  by  statute.* 

§  171.  Tenants  in  Ejectment. — The  action  of  ejectment 
being  purely  a  possessory  action,  a  number  of  persons  are 
considered  as  in  privity  with  the  defendant  therein,  to  the 
extent  that  they  must  yield  up  the  possession  to  a  prevailing 
plaintiff,  though  their  title  to  the  property  in  question 
remains  unadjudicated  ;  and  is  susceptible  of  being  success- 
fully asserted  against  the  now  successful  party  in  some  sub- 
sequent controversy.  When  considering  the  force  of  a 
judgment  in  ejectment,  privies  "are  those  who  entered 
under,  or  acquired  an-  interest  in  the  j^remises  from  or 
through,  or  entered  without  title  by  collusion  with  defend- 
ants subsequent  to  the  commencing  of  the  action."'^  The 
landlord  who  receives  possession  from  his  tenants  pending 
the  suit,  and  all  persons  entering  under  defendants,  or  as 
trespassers  pendente  lite,   are  subject  to    be   dispossessed 


1  rh.  Ev.  Vol.  2,  p.  10. 

2  Bounker  v.  Atkj  ns,  Skin.  15. 
3Eang  V.  Grimes,   BuUer's  N.   P. 

231. 

•  178 


4  State  u  Cinn.  Gas  Co.,  18  Ohio 
S.  262. 

sSatterlee  v.  Bliss,  3G  Cal.  489; 
Wattson  r.  Dowling,  2G  Cal.  124. 


Chap.  IX.]  CO-OWNERS.  §§171-171o 

under  tlie  judgment.'  If  the  writ  of  restitution  in  such 
cases  did  not  authorize  the  removal  of  all  persons,  not  in 
possession  at  the  institution  of  the  suit,  a  series  of  trans- 
fers of  occupancy  from  one  person  to  another  woiild  forever 
preclude  the  plaintiff  from  obtaining  the  use  of  his  prop- 
erty. In  the  execution  of  this  writ,  it  is  to  be  presumed 
that  all  the  parties  found  in  possession  are  there  as  tres- 
passers, or  as  lessees  or  purchasers  from  the  defendant 
pendente  lite.^  The  statute  of  California  provides  that  "An 
action  for  the  recovery  of  real  property  against  a  person  in 
possession  cannot  be  prejudiced  by  any  alienation  made  by 
such  person,  either  before  or  after  the  commencement  of 
the  action."  s 

§  171a.  Co-o-wners. — A  co-owner,  by  whatever  species 
of  co-tenancy  he  may  hold,  is  not  bound  by  a  judgment  ren- 
dered against  his  companion  in  interest.  Discussing 
whether  one  of  several  co-heirs  could  be  prejudiced  by  pro- 
ceedings against  the  others,  the  Supreme  Court  of  the  State 
of  Georgia  said :  ' '  Each  of  these  grandchildren  was  entitled 
in  his  own  right,  to  his  share  of  his  ancestor's  estate,  and 
to  contest  any  conflicting  claim.  They  do  not  claim  through 
one  another.  The  interest  of  each  Avas  separate  and  inde- 
pendent. Therefore,  a  judgment  against  a  part,  did  not 
prevent  the  rest  from  being  heard."*  A  part  owner  is  so 
free  from  having  any  interest  in  the  result  of  a  litigation 
against  his  co-tenant,  that  he  is  not  disqualified  from  being 
a  witness  at  the  trial. ^  A  judgment  in  favor  of  the  defend- 
ant, and  against  one  or  more  of  the  several  tenants  in  com- 
mon, in  an  action  of  ejectment,  can  not  prejudice  any  of 
the  co-tenants  not  parties  to  that  suit.  A.  B.  and  C.  being 
owners  of  the  undivided  three  fourths  of  the  title  to  a  tract 
of  land,  were  sued  in  an  action  of  trespass,  for  excavating  a 
part  of  the  land;  the  title  was  put  in  issue,  and,  from  some 


1  Sampson  r.  Olileyer,  22  Cal.  200; 
Hanson  v.  Armstrong,  22  111.  442 ; 
Jones  V.  Chiles,  2  Dana,  25;  Howard 
V.  Kennedy,  4  Ala.  592  ;  Smith  v. 
Traube's  Heirs,  1  McL.  87;  Wallin  v. 
Huflf,  2  Sneed,  82;  Jackson  v.  Tuttle, 
9  Cow.  233. 


2  Long  V.  Morton,  2  A.  K.  M.  39. 

3  j747,  Code,  C.  P. 

4Walker  v.  Ferryman,  23  Geo.  314. 

5  Bennett  v.  Hethington,  16  S.  & 
R.  195;  Hammettt'.  Blount,  1  Swan, 
385. 

179 


g§171a-172  LAW  OF  JUDGMENTS.  [Cliap.  IX. 

cause,  jnclgment  was  entered  against  them.  Thereafter  D., 
the  owner  of  the  remaining  fourth,  sued  the  plaintiff  in  the 
former  action  for  the  possession  of  the  same  premises,  and 
established  his  title.  Whereupon,  the  defendant  in  the 
second  suit,  insisted  that  as  "A.  B.  and  C.  were  estopped 
from  maintaining  any  further  action,  by  operation  of  the 
judgment  against  them,  D.  could  not  recover  to  any  greater 
extent  than  if  the  defendant  possessed  the  title  of  A.  B.  and 
C.  But  the  court  held  that  as  D,"  by  virtue  of  his  owner- 
ship of  an  undivided  interest,  was  as  against  a  trespasser 
entitled  to  recover  the  whole  tract,  his  rights  in  that  respect 
could  not  be  changed  by  a  proceeding  to  which  he  rras  not 
a  party.  That,  notwithstanding  the  former  judgment,  the 
title  of  the  defendant  continued  to  be  as  it  was  prior  there- 
to— that  of  a  trespasser;  and  finally,  that  there  was  no  legal 
impediment  to  D.'s  recovering  the  entire  tract,  as  he  could 
have  done  before  the  judgment  against  his  co-tenants.' 

g  172.  Remainder-men  and  Persons  not  in  Esse. —If 
several  remainders  are  limited  by  the  same  deed,  this  cre- 
ates a  privity  between  the  person  in  remainderr,  and  all  those 
who  may  come  after  him;  and  a  verdict  and  judgment  for  or 
against  the  former  may  be  given  in  evidence  for  or  against 
any  of  the  latter.  ^  But  there  seems  to  be  a  conflict  of 
opinion  as  to  whether  the  same  privity  exists  between  a 
tenant  for  life  and  a  reversioner,  unless  the  latter  has  iden- 
tified himseK  with  the  litigation  out  of  which  the  judgment 
resulted,  as  by  being  made  a  party  to  the  proceedings  by 
aid  prayer.^  "  If  there  are  ever  so  many  contingent  limita- 
tions of  a  trust,  it  is  an  established  rule,  that  it  is  sufficient 
to  bring  the  trustees  before  the  court,  together  with  him  in 
whom  the  first  remainder  of  inheritance  is  vested;  and  all. 
that  may  come  after  will  be  bound  by  the  decree  though  not 
in  esse,  unless  there  be  fraud  and  collusion  between  the 
trustees  and  the  first  person  in  whom  the  remainder  of  in- 
heritance is  vested. "■•  S.  P.  C.  conveyed  lands  to  three 
trustees  to  hold  in  trust:  1st.— To  himself  for  life;  2nd.— 


1  Williams  v.  Sutton,  43  Cal.  71. 

2  Pyke  V.  Crougli,  1  Ld  Raym.  730. 

180 


3  Adams  v.  Bntts,  9  Conn.  79;  Ph. 
Ev.  14-5. 

4 Hopkins  v.  Hoi^kins,  1  Atk.  590. 


Chap.  IX.]  EEMAINDEK-MEN.  §172 

Eemaincler  to  the  heirs  of  his  body;  3d.-Kemainder  to  E. 
C.  for  life;  4th.— Remainder  to  the  heirs  of  E.  C.'s  body; 
5th.~Eemainder  in  fee  to  the  children  of   S.  C.      In  an 
action  against  the  trustees,  this  deed  was  set  aside.     S.  P. 
C.  and  E.  C.  afterward  dying,  the  children  of  S.  C.  com- 
menced suit  to  obtain  their  remainder  in  fee.     But  it  was 
held  that  the  decree  setting  aside  the  deed,  was  binding  on 
them;  that  the  contingent  remainders  depended  on  the  legal 
fee  and  the  equitable  estate  in  S.  P.  C.  intermediate,  and 
was  liable  to  be  destroyed  by  any   thing  which  defeated 
those  estates,'     According  to  the  views  entertained  and  ex- 
pressed by  Lord  Redesdale,    "  it  is  sufficient  to  bring  before 
the  court,  the  first  tenant-in-tail  in  being,  and  if  there  be 
no  tenant-in-tail  in  being,  the  first  person  entitled  to  the 
inheritance,  and  if  no  such  person,  than  the  tenent  for  life. 
It  has  been  repeatedly  determined,  that  if  there  be  tenant 
for  life,  remainder  to  his  first  son  in-tail,  remainder  over, 
and  he  is  brought  before  the  court  before  he  has  issue,  the 
contingent  remainder-men  are  barred."  ^     But  in  Maryland 
where  one  sixth  of  certain  property  was  devised  to  the  testa- 
tor's daughter  ''during  her  life,  and  after  her  decease  to  her 
male  children  on  her  body  lawfully  begotten  or  to  he  begotten, 
a  bill  in  equity  was  filed  against  this  daughter  and  her  two 
sons,  by  other  part  owners  of  the  land  alleging  that  a  parti- 
tion could  not  be  advantageously  made,  and  praying  for  a 
sale  of  the  land  and  the  distribution  of  the  proceeds.     A 
decree  was  subsequently  entered   in  accordance  with  this 
prayer,  and  was  succeeded  by  the  sale  of  the  property  there- 
under.    After  the  death  of  the  daughter,  her  five  sons  com- 
menced an  action  of  ejectment  to  recover  possession  of  one 
sixth  of  the  land.     Three  of  the  sons  had  been  born  since 
the  rendition  of  the  decree  under  which  the  sale  had  been 
made;  and  it  was  contended  that  as  they  were  not  in  esse 
they  could  not  be  bound  by  the  decree.     The  court  held 
that  thei]-  interest  could  not  be  destroyed  by  their  mother, 
as  life-tenant,  nor  by  their  living  brothers;    "that    their 
rights  under  the  will  were  indestructible  by  any  act  of  the 
parties  having  interests  prior  to  or  in  common  with  them," 


^  Campbell  v.  Watson,    8  Hamiu. 
498. 


2  Giflfard  v.  Hort,  1  Sch.  aud  Lef. 
407. 

181 


gg  172-173  LAW  OF  JUDGMENTS.  [Chap.  IX. 

and,  therefore,  that  they  were  not  prejudiced  by  the  decree 
of  sale  and  the  proceedings  had  in  pursuance  thereof.  ^     The 
difference  between  the  conclusions  reached  by  the  court  in 
Maryland  and  those  announced  by  Lord  Kedesdale  is  this : 
that  in  Maryland  some  person  must  be  brought  before  the 
court  having  an  estate  of  inheritance  and  "vvho  is,   on  that 
account,  entitled  to  represent  both  his  own  interests  and  the 
interests  of  all  who  may  claim  after  his  death ;  while,  accord- 
ing to  Lord  Kedesdale,  if  there  be  no  person  in  existence 
possessing  an  estate  of  inheritance,  then  the  tenant  for  life 
may  be  brought  before  the  court  and  treated  as  the  repre- 
sentative of  persons  who  may,  by  their  subsequent  birth, 
acquire  interests  in  the  estate.      The  views  of  Lord  Redes- 
dale  are  sustained  by  a  majority  of  the  reported  adjudica- 
tions on  this  subject.  3 

§  173.  Trustees  and  Cestuis  que  Trust. — As  a  general 
rule,  the  irustees  and  their  cestuis  que  trust  are  regarded  as 
being  so  independent  that  proceedings  against  one  has  no 
effect  upon  the  other,  and  both  are  essential  to  a  complete 
determination  of  any  action  in  reference  to  the  trust  estate.^ 
This  rule,  however,  yields  to  convenience  and  necessity. 
Where  it  is  impossible  or  extremely  inconvenient  to  bring 
all  the  cestuis  que  trust  before  the  court,  either  as  plaintiffs 
or  as  defendants,  on  account  of  their  number,  tlie  court  will 
allow  in  the  case  of  plaintiffs  a  few  of  the  cestuis  que  trust  to 
bring  an  action,  and  in  the  case  of  defendants,  if  the  trustees 
are  parties  defendant,  the  presence  of  the  cestuis  que  trust 
may  be  altogether  dispensed  with.  What  number  of  cestuis 
que  trust  will  be  regarded  as  so  great  to  obviate  the  neces- 
sity of  bringing  all  of  them  into  court,  is  undetermined. 
In  Harrison  v.  Steivardson  (2  Hare.  533),  twenty-one  cestuis 
que  trust  were  required  to  be  joined;  but  in  other  cases,  in- 
volving circumstances  of  unusual  difficulty,  when  the  num- 
ber was  but  little  greater,  a  part  were  authorized  to  repre- 


1  Downin  v.  Spreclier,  35  M'd.  478. 

2  Faiilknor  V.  Davis,  18  Gratt.  684; 
Baylor's  lessee  v.  Dejarnette,  13  Gratt. 
152;  Gaskell  v.  Gaskell,  G  Sim.  G43; 

182 


Freeman  v.   Freemau,    Tenn.    April 
term,  1S72,  2  south,  L.  E.  1G8. 
2  Collins  V.  Lofftus,  10  Leigli.  5, 


Cliap.    IX.]  CESTUIS  QUE  TRUST.  §173 

sent  all.^  No  doubt  there  are  many  instances  in  wliicli  the 
trustee  is  authorized  to  represent  his  cestuis  que  trust;  and  in 
which  the  judgment  is  conclusive  on  the  latter  in  the  ab- 
sence of  fraud  or  collusion.  Thus,  where  A.  conveyed  cer- 
tain mortgaged  j)i'emises  to  B.,  in  trust  for  A.'s  wife,  and 
the  mortgagee  instituted  suit  against  B.  to  foreclose,  who 
answering,  admitted  the  facts  to  be  as  stated  in  the  com- 
plaint, and  consented  to  such  decree  as  might  be  right,  it 
was  held  that  B.  was  empowered  by  the  nature  of  his  trust 
to  represent  the  interests  of  his  cestuis  que  trust  to  this  ex- 
tent, and  that  in  the  absence  of  any  evidence  of  injury  to 
her  or  her  estate,  she  ought  not  to  be  allowed  to  reverse  nor 
to  impeach  the  decree.^  When  a  creditor  makes  an  assign- 
ment for  the  benefit  of  his  creditors,  the  assignee  acquires 
the  legal,  and  the  creditors  the  equitable,  estate.  A  judg- 
ment against  the  assignee,  in  relation  to  property  embraced 
in  the  assignment,  is  conclusive,  unless  it  can  be  avoided 
for  fraud  or  collusion.^  It  has  been  said  that  the  cestuis 
que  trust  of  a  mortgagee  are  not  necessary  parties  to  a  fore- 
closure suit,  whether  such  suit  is  to  enforce  the  mortgage 
or  to  make  it  subordinate  to  some  other  lien  ;  and  that  ' '  a 
final  decree  settling  the  rights  of  all  parties  may  be  made 
without  bringing  such  cestuis  que  trust  before  the  court."* 
If  a  judgment  be  recovered  in  the  name  of  A.,  the  law  will 
protect  any  equitable  interest  of  another  person  for  whose 
benefit  the  judgment  was  intended,  and  who  was  the  equita- 
ble owner  of  the  chose  in  action  on  which  it  was  recovered, 
though  the  record  does  not  disclose  that  fact.  A  garnishee 
of  tlie  nominal  plaintiff  can  not  enforce  payment  of  the  judg- 
ment to  himself.^  It  is  not  intended  that  the  fact  of  the 
legal  and  equitable  title  being  in  different  persons  shall 
authorize  the  same  issues  to  be  twice  bona  fide  litigated.  A 
suit  by  A.  for  the  use  of  B.,  or  as  A.'s  trustee,  is  binding 
on  B.  No  man  can  be  permitted,  after  adjudicating  a  mat- 
ter by  his  trustee,  to  disregard  that  adjudication. "^     The 


1  Perry  on  Trusts,  §§  873  and  885, 
and  cases  cited  in  $157  in  this  work. 

2  Johnson  v.  Robertson,  31  Md.  476. 

3  Field  V.  Flanders,  40  111.  470. 


4N.  J.  F.  Co.  V.  Ames,  1  Beas.  Ch. 
507. 

sHodsont'.  McConncl,  12  III.  170. 

6  Peterson  v.  Lathrop,  24  Pa.  S.  223; 
Calhoun  V.  Dunning,  4  Dall.  120. 

183 


§gl73-175  LAW   OF   JUDGMENTS.  [Clliip.  IX. 

equitable  owner  of  a  chose  in  action  is  bound  to  the  same 
extent  as  if  ho  were  a  party  to  the  record.' 


PAET    in.— OF  PERSONS    BOUND,    THOUGH  NEITHER  PARTIES 

NOR  PRIVIES. 

g  174.  "Neither  the  benefit  of  judgments  on  the  one 
side,  nor  the  obligations  on  the  other,  are  limited  exclu- 
sively to  parties  and  their  privies. "~  Or,  in  other  words, 
there  is  a  numerous  and  important  class  of  persons,  who, 
being  neither  parties  upon  the  record,  nor  acquirers  of  in- 
terests from  those  parties  after  the  commencement  of  the 
suit,  are  nevertheless  bound  by  the  judgment.  Prominent 
among  those,  are  persons  on  whose  behalf,  and  under  whose 
direction  the  suit  is  prosecuted  or  defended,  in  the  name  of 
some  other  person.  ^  As  is  illustrated  by  the  case  of  trustee 
and  cestui  que  trust,  the  real  party  in  interest  cannot  escape 
the  result  of  a  suit  conducted  by  him  in  the  name  of  an- 
other.* The  fact  that  an  action  is  conducted  in  the  "  names 
of  nominal  parties,  cannot  divest  the  case  of  its  real  char- 
acter, but  the  issues  made  by  the  real  parties.,  and  the 
actual  interests  involved,  must  determine  what  persons  are 
precluded  from  again  agitating  the  question;  and  who  are 
estopped  by  the  previous  decision.  "^ 

§  175.  Evidence  to  Show  v/ho  were  the  Real  Parties. 
For  the  purpose  of  showing  that  parties  not  named  in  the 
record,  were  the  real  parties  in  interest,  and  conducted  the 
suit  in  the  name  of  others,  who  were  only  nominal  parties, 
parol  evidence  may  always  be  offered,  and  when  the  show- 
ing is  made,  the  real  parties  are  concluded  by  the  judg- 
ment.'' 


1  Rogers  v.  Haines,  3  Greenl.  3G2; 
Curtis  V.  Cismi'b  Admr.,  1  Hamm. 
432  ;  Boynton  v.  Willard,  10  Pick. 
1G6. 

2  Valentine  c.  Maboney,  37  Cal. 
389. 

sStoddart  v.  Thompson,  31  Iowa, 
80. 

184 


4 Elliott  V.  Hayden,  104  Mass.  180; 
Jackson  v.  Griswold,  4  Hill.  522,  Ph. 
Ev.  Vol.  2,  p.  10;  Train  v.  Gold,  5 
Pick.  380. 

sTates  Ex.  v.  Hunter,  3  Strob.  Eq. 
13G. 

cTarlton  v.  Johnson,  25  Ala.  300; 
Shirley  v.  Fearnc,  33  Miss.  G53. 


Chap.  IX.]        CORPORATION   AND  STOCKHOLDER.  § §170-177 

§  176.  Parties  Bound  without  Notice. — In  many  in- 
stances, the  relation  of  the  nominal  parties  to  the  suit  to 
other  persons,  is  such  that  the  latter  are  conclusively  bound 
by  a  JLidgment  against  the  former  in  the  absence  of  fraud  or 
collusion,  although  they  are  not  notified  of  the  pendency  of 
the  suit,  and  are  not  called  upon  to  conduct  its  prosecution 
or  defense.  In  respect  to  the  qu'estion  who  are  those  par- 
ties, whose  interests  are  thus  inseparably  associated  the 
decisions  are  often  inconsistent;  but  undoubtedly,  the  gen- 
eral principle  sanctioned  by  a  vast  preponderance  of  au- 
thority is  that  every  person  who  has  made  an  unqualified 
agreement  to  become  responsible  for  the  result  of  a  litiga- 
tion, or  upon  whom  such  a  responsibility  is  cast  by  opera- 
tion of  law  in  the  absence  of  any  agreement,  is  conclusively 
bound  by  the  judgment.  This  rule  will  become  manifest 
from  an  examination  of  the  adjudged  cases.  "Wherever 
this  identity  of  interest  is  found  to  exist,  all  alike  are  con- 
cluded. Thus,  if  one  covenant  for  the  results  or  conse- 
quences of  a  suit  between  others,  as  if  he  covenants  that  a 
certain  mortgage  assigned  by  him  shall  produce  a  specific 
sum,  he  thereby  connects  himself  in  privity  with  the  pro- 
ceedings, and  the  record  of  the  judgment  in  that  suit  will 
be  conclusive  against  him.  •  In  the  case  at  bar,  the  appel- 
lant having  bound  himself,  that  defendants  in  the  attach- 
ment suit  would  cause  the  slaves  levied  upon  and  replevied 
to  be  forthcoming  to  abide  the  order  of  the  court,  has  con- 
nected himself  in  privity  with  the  proceedings,  and  made 
the  judgment  conclusive  against  him."  ^ 

§  177.  Corporation  and  Stockholder. — Under  statutes 
imposing  personal  liabilities  upon  the  stockholders  for  the 
debts  of  a  corporation,  great  contrariety  of  opinion  has  been 
exhibited  in  relation  to  the  eifect  of  a  judgment  against  the 
latter,  as  evidence  of  debt  against  the  former.  In  the 
first  case  decided  upon  this  subject  in  New  York,  the  Court 
of  Errors,  reversing  the  judgment  of  Chancellor  Kent,  held 
that  the  stockholders  were  chargeable,  on  the  ground  that 
the  trustees,  as  agents  of  the  stockholders,  had  contracted 

1  Collins  V.  Mitchell,  5  Fla.  371  ;  Eapelye  v.  Prince,  4  Hill,  119  ;  Greenl. 
Ev.  §  523. 

185 


gl77  LVW  OF  JUDGMENTS.  [Chap.  TX. 

the  cleBt  evidenced  by  tlio  judgment,  and  that  the  latter 
could  impeach  the  indebtedness  upon  no  ground,  except 
fraud  or  error  in  liquidation.     That  tlio  judgment  must  be 
regarded  "  as  a  solemn  admission  of  indebtedness;  but  it 
is  not  binding  as  res  judicata  upon  the  stockholders,  if  it 
was  procured  by  fraud,  or  is  founded  in  error.  ^     Subse- 
quently, in  the  same  State,'  it  was  said,  in  reference  to  a  judg- 
ment recovered  upon  a  note,   that    "as   against  the   com- 
pany the  judgment  is  conclusive  evidence  that  the  note  was 
valid,  and  although  the  defendant  was  not  directly  a  party 
yet,  as  a  stockholder,  he  was  not  altogether  a  stranger  to  the 
judgment,"  and  that  the  judgment  constituted  a  prima  facie 
evidence  against  the  stockholder.'      But   the   doctrine   of 
these  cases  was  considered  as  shaken  by  the  opinion  of 
Cowen,  J.,  in  31ossy.  McCidloiigh  (5  Hill,  131),  and  as  late  as 
1860,  a  majority  of  the  Court  of  Appeals  in  the  same  State, 
"refused  to  commit  themselves  to  the  doctrine  that  a  judg- 
ment against  the  corporation  is  even  prima  facie  evidence 
against  a  stockholder,"  while,  in  the  opinion  of  the  minority, 
"A  judgment  against  a  corporate  body,  is  one  of  the  high- 
est evidences   of  indebtedness   known   to  the  law;  it  is  a 
solemn  admission  by  record,  that  the  corporation  oAves  the 
sum  claimed  in  the  suit,"  and  that  "a  judgment  by  confes- 
sion, in  the  absence  of  any  pretense  of  fraud  or  collusion, 
is  just  as  conclusive  upon  a  corporation,  as  one  rendered 
after  litigation,  and  a  judgment  by  default,  is  only  another 
mode  of  declaring  by  a  record  estoppel  that  the  corporate 
body  has  no  just  defense,  and  can  say  nothing  in  bar  of  the 
claim  preferred  against   it."^     In   a  suit  against  a  stock- 
holder, it  seems  to  be  necessary  to  establish  the  organiza- 
tion   and   existence   of  the   corporation,    and  a  judgment 
against  the  corporation  is  not  conclusive  evidence  of  those 
facts,  in  an  action  against  the  stockholder.^     But  the  ex- 
istence and  organization  being  proved,  there  seems,  at  the 
present  time,  to  be  no  doubt  that  a  judgment  against  a  cor- 
poration is  conclusive  evidence  of  debt  against  its  stock- 


1  Slee  V.  Bloom,  20  Johns,  G69. 

2  Moss  V.  Oakley,  2  Hill,  265,  and 
Moss  V.  McCiiUough,  7  Burb.  279. 

18G 


SBelmont  v.  Coleman,  21  N.  Y.  9G. 
^Hudson  V.  Carman,  41  Me.  84. 


Chap.  IX.]  prjxciPAL  and  surety.  §gl77-180 

holders,  to  be  avoided  only  on  proof  of  fraud,  collusion  or 
mistake,  and  not  upon  original  grounds.  ^ 

§  178.  County  and  Tax  Payer. — A  judgment  against  a 
county  or  its  legal  representatives,  in  a  matter  of  general 
interest  to  all  its  citizens,  is  binding  upon  the  latter,  thougli 
they  are  not  parties  to  the  suit.  A  jadgment  for  a  sum  of 
money  rendered  against  a  county,  imposes  an  obligation 
upon  the  citizens,  which  they  are  compelled  to  discharge. 
Every  tax  payer  is  a  real,  though  not  a  nominal,  party  to  such 
judgment.  If,  for  the  purpose  of  providing  for  its  pay- 
ment, the  officers  of  the  county  levy  and  endeavor  to  collect 
a  tax,  none  of  the  citizens  can,  by  instituting  proceedings 
to  prevent  the  levy  or  enforcement  of  the  tax,  dispute  the 
validity  of  the  judgment,  nor  re-litigate  any  of  the  questions 
which  were  or  which  could  have  been  litigated  in  the  orig- 
inal action  against  the  county.^ 

§  179.  Master  and  Servant. — A  suit  was  commenced 
against  a  master  for  a  trespass  committed  by  his  servant, 
under  his  order  and  direction.  After  a  trial  upon  the  merits, 
ending  in  a  judgment  for  the  defendant,  it  was  held  that  the 
plaintiff  was  thereby  precluded  from  maintaining  an  action 
against  the  servant  for  the  same  trespass. ^  Where  a  ser- 
vant was  sued  for  trespass  in  taking  property,  and  the 
master  defended  the  suit,  and  justified  his  servant  in  the 
taking,  it  was  decided  that  the  judgment  was  conclusive  on 
the  master,  because  it  was  his  duty  to  indemnify  the  servant 
in  acting  as  his  agent;  and  that  he  was  bound  to  appear 
and  defend,  and  that  a  judgment  in  his  servant's  favor  was 
conclusive  as  a  defense  to  an  action  by  the  same  plaintiff 
against  the  master  for  the  same  trespass.* 

^  180.     Principal  and  Surety. — The  law  in  relation  to  the 
effect  of  a  judgment  against  a  principal,  for  the  purpose  of 


iConklin  v.  Furman,  8  Abb.  Pr., 
N.  S.  161;  also  57  Barb.  484,  504;  Mil- 
ler V.  White,  8  Abb.  Pr.,  N.  S.  46; 
Milliken  v.  Whitehouse,  40  Me.  527. 
Bank  of  Australasia  v.  Nias,  4  Eng. 
L.  &Eq.  252;  Crane  v.  Brigham,  39 
Me.  35. 


2  Clark  V.  Wolf,  29  Iowa,  197. 

3 Emery  r.  Fowler,  39  Me.  326; 
Kitchen  v.  Campbell,  3  Wei.  304; 
Kennersley  v.  Orpe,  Doug.  517. 

4  Castle  V.  Noyes,  14  N.  Y.  329. 


187 


gl80  LAW  or  JUDGMENTS.  [Cliap.  IX. 

cliarging  the  surety,  is  differently  understood  and  applied 
in  the  different  States.     And  in  the  same  State,  distinctions 
are  made  between  different  classes  of  sureties.    It  seems  to 
be  generally  conceded,  however,  that  wherever  the  surety 
has  contracted  in  reference  to  the  conduct  of  one  of  the  par- 
ties in  some  suit  or  proceeding  in  the  courts,  he  is  con- 
cluded by  the  judgment.     Thus,    a  judgment   against   a 
defendant  is  conclusive  upon  his  bail,  if  free  from  fraud  or 
collusion;  and  they  cannot  show  that  it  is  for  too  great  a 
sum,  nor  that  it  was  obtained  on  account  of  the  default  or 
negligence  of  the  principal.  ^     The  sureties  upon  an  injunc- 
tion bond  "assume  such  a  connection  with  that  suit  that 
they  are  concluded  by  a  judgment  in  it,  in  a  suit  atlawupon 
the  bond,  so  far  as  the  same  issues  are  involved."     Sureties 
upon  the  bond  of  an  executor  or  an  administrator  seem 
also  to  occupy  a  position  in  which  their  responsibility  may 
be  fixed  in  suits  to  which  they  are  not  parties,  and  in  which 
they  are  not  tendered  an  opportunity  to  defend.     "If  a 
judgment  has  been  recovered  against  an  administrator,  and 
an  action  thereon  be  commenced  against  the  surety  on  his 
bond  to  the  ordinary,  such  judgment  is  conclusive,  unless 
the  surety  can  show  that  it  was  obtained  through  fraud  or 
collusion   between    the  creditor  and   the   administrator."^ 
The  only  questions  open  to  the  sureties  in  a  suit  on  such  a 
bond,  after  judgment  against  their  principal,  are  in  refer- 
ence to  the  making  of  the  bond  and  its  legal  sufSiciency.* 
"When  judgment  has  been  recovered  in  a  court  of  competent 
jurisdiction  against  an  administrator,  showing  that  he  has  re- 
ceived funds  belonging  to  an  estate,  and  has  failed  to  pay  over, 
the  same,   a  breach  of  his  administration  bond  is  estab-_ 
lished.     By  this  judgment  the  administrator  is  bound  and 
the  sureties  are  concluded  to  the  same  extent  which  their 
principal  is  concluded. "^     The  rule  applicable  to  the  sure- 
ties of  an  administrator  is,  in  general,  applicable  to  sureties 
on  the  official  bonds  of  sheriffs,  constables,  guardians  and 


iParkhurst  v.  Sumner,  23  Vt.  538. 

2Towlo  V.  Towle,   4G  N.   II.   432; 
Church  V.  Barker,  18  N.  Y.  463. 

3 Boyd  V.    Caldwell,    4   Eich.  117; 
State  V.  Coste,  3G  Mo.  437. 
188 


4 Watts  V.  Gale,  20  Ala.  817;  Willey 
.  Paulk,  ()  Couu.  74. 
sStovall  V.  Banks,  10  Wall.  583. 


Chap.  IX.] 


PIIIXCITAL  AND  SURETY. 


PASO 


trnstoes.  ^  The  rule  is  sometimes  made  to  depend  on  the 
question  whether  the  bond  is  joint  or  several  in  its  nature. 
Thus  it  is.  said,  that  a  judgment  obtained  against  a  con- 
stable for  wrongful  attachment  is,  in  the  absence  of  a  fraud 
or  collusion,  conclusive  evidence  in  an  action  against  him 
and  his  sureties,  both  as  to  damages  and  to  cost,  if  his  bond 
is  joint,  because  the  principal  is  liable  and  his  bondsmen 
must  be  jointly  liable  with  him.  2  In  some  instances,  how- 
ever, the  sureties  upon  the  bonds  of  sheriffs,  constables, 
executors  and  administrators,  have  been  deemed  entitled  to 
notice  of  the  suits  before  they  could  be  conclusively 
bound.  3  A  bond  was  given  by  a  dejiuty  sheriff  to  his  prin- 
cipal, conditioned  that  the  deputy  should  "well  and  faith- 
fully, in  all  things,  perform  and  execute  the  duties  of  deputy 
sheriff  without  fraud,  deceit  or  oppression."  The  sheriff 
being  sued  for  an  act  of  the  deputy,  gave  notice  to  the  lat- 
ter, but  not  to  his  sureties.  Judgment  being  rendered 
against  the  sheriff,  he  offered  it  as  evidence  in  an-action  by 
him  against  the  sureties,  whereupon  it  was  decided  that 
"the  terms  of  the  condition  of  this  bond  do  not  bring  it 
within  the  class  of  cases  in  which  an  indemnitor  is  con- 
cluded by  the  result  of  a  suit  against  the  person  whom  he 
has  undertaken  to  indemnify,  upon  the  ground  that  such  is 
the  fair  interpretation  of  the  terms  of  the  contract.  This 
condition  is  only  that  he  will  do  his  duty  as  deputy  sheriff. 
In  the  class  of  cases  alluded  to,  the  contract  of  indemnity 
is  held  to  stipulate  for  the  result  of  a  litigation  which  the 
indemnitor  is  not  a  party,  and  to  make  his  liability  to  de- 
pend merely  upon  that  result.  There  is,  therefore,  no  rea- 
son why  this  case,  in  which  the  language  of  the  condition 
admits  of  no  similar  construction,  should  be  taken  out  of 
the  general  rule  which  declares  the  effect  of  judgments  as 
to  strangers,   that  they  conclusively  prove  rem  ipsam,  and 


1  Garber  v.  Commonwealth,  7  Barr. 
265;  Heard  t;.  Lodge,  20  Pick.^G3. 

SEvans  v.  Commonwealth,  8  Watts. 
39S;  Tracy -u.  Goodwin,  5  Allen,  409; 
Masser  v.  Stvictland,  17  S.  &  R.  334. 


SLncag  v.  Governor,  6  Ala.  826; 
State  V.  Colerick,  3  Hamm.  487;  Aik- 
ins  V.  Bailey,  9  Yerg.  Ill;  Hobson  v. 
Yancey,  2  Gratt.  72;  Cox  v.  Thomas, 
9  Gratt.  323. 

189 


gl80  LAW  OF  JUDGMENTS.  [Chap.   IX. 

nothing  else."^  In  a  subsequent  case,  in  the  same  State,  a 
deputy  had  given  a  joint  bond  with  sureties  to  the  effect 
that  the  obligors  "  shoukl  well  and  sufficiently  indemnify 
and  keep  harmless  'the  principal'  from  and  of  all  manner 
of  costs,  charges,  damages  and  expenses  which  he  might 
incur  or  be  put  to  by  reason  of  any  act  or  acts,  omission  or 
omissions  of  the  deputy  in  or  about  the  execution  of  his 
office  of  deputy  sheriff."  In  an  action  against  the  sheriff, 
he  notified  the  deputy  who  appeared  and  managed  the  de- 
fense. No  notice  was  given  the  sureties.  The  sureties 
sought  to  avoid  the  effect  of  the  judgment  as  evidence 
against  them.  But  the  condition  of  this  bond  was  consid- 
ered as  materially  different  from  that  in  the  case  of  Tliomas 
V.  Hiibhell,  and  great  stress  was  laid  upon  the  fact  that  the 
bond  was  joint.  "The  defendants  being  jointly  bound  to 
indemnify  the  plaintiff,  they  were  in  privity  of  contract 
with  each  other,  and  are  to  be  regarded  and  treated,  quoad 
the  contract,  and  the  rights  and  liabilities  connected  with 
and  growing  out  of  it,  as  one  person.  In  such  a  case,  no- 
tice to  one  is  notice  to  all,  on  the  same  principle  as  where 
two  or  more  persons  are  shown  to  be  jointly  bound  by  a 
contract,  the  acts  and  admissions  of  either  are  binding  upon 
all  the  others  to  the  same  extent  as  upon  the  one  doing  the 
acts  or  making  the  admissions. 

"It  was  no  part  of  plaintiffs  agreement  with  the  sureties 
on  the  bond,  that  they  should  have  notice  of  suits  brought 
against  him  for  the  misconduct  of  his  deputy  ,  and  their 
liability  as  indemitors  was  not  made  to  depend  on  such 
notice.  The  law,  indeed,  required  notice  to  the  deputy,  in 
order  that  he  might  defend  and  discharge  himself  from 
the  misconduct  imputed  to  him,  and  for  the  purpose  of 
rendering  the  judgment  against  the  sheriff  conclusive,  if 
one  should  be  obtained.  The  notice  was  properly  given  to 
the  deputy,  whose  conduct,  only,  was  called  in  question, 
and  who  is  presumed  to  know  the  facts  and  circumstances 
far  better  than  the  sureties  or  the  sheriff.  If,  in  addition 
to  giving  notice  to  the  deputy,  notice  had  been  given  to  the 

^     1  Thomas  v.  Hubbell,  15  N.  Y.  405,  j  page  9.    The  same  case  was  again  de- 
reversing  and  overruling  the  opinion   cided  on  appeal  in  35  N.  Y.  120. 
in  the  samo  case  reported  in  18  Barb.  | 

190 


Chap.  IX.] 


PRINCIPAL  AND   SURETY. 


^180 


sureties  also,  it  would  have  been  little  more  than  an  idle 
and  useless  ceremony,  as  it  is  to  be  presumed  that  all  they 
would  or  could  have  done,  would  have  been  to  refer  the 
matter  to  their  principal,  the  deputy,  and  cast  the  burden 
of  the  defense,  as  the  sheriff  has  done. 

' '  By  a  fair  and  reasonable  interj)retation  of  tho  condi- 
tions of  the  bond,  the  parties  contemplated  that  actions 
might  be  brought  against  the  sheriff  for  the  acts  or  omission 
of  his  deputy,  and  the  covenant  of  indemnity  in  the  condi- 
tion was  inserted  to  provide  for  such  contingencies."  ^ 

In  respect  to  sureties  upon  bonds  and  contracts,  other 
than  those  already  noticed,  the  contrariety  of  opinion  con- 
cerning the  effect  upon  them  of  a  Judgment  against  their 
principal,   is  very  marked   and   irreconcilable.     The  most 
extreme  ground  taken  against  such  a  judgment  was  that  as- 
sumed in  a  couple  of  cases  in  New  York,  where  it  was  held 
that  a  surety,  though  notified  of  a  suit  against  his  principal, 
and  though  assisting  in  conducting  it,  was  not  bound  by 
the  judgment,   unless  admitted  to  defend  in  the  name  of 
the  principal,  because  he  could  not  have  appeared  nor  have 
managed  the  suit,   except  by  the  consent  of  his  principal, 
nor   could  he  take  an  appeal.^      In  a  number  of  cases  a 
judgment  or  decree  against  the  principal  was  considered 
as  constituting  not  even  prima  facie  evidence  against  the 
surety.  3     These   cases   are,    however,    opposed    by   more 
numerous  cases,  which  unite  in  declaring  the  prima  facie 
effect  of  such  a  judgment  as  evidence  against  a  surety,^  but 
differ  somewhat  as  to  the  means  by  which  this  prima  facie 
evidence  may  be  rebutted.     In  Georgia,  the  surety  "may 
rebut  this   evidence ;  and  he  may  not  only  look  into  the 
judgment  or  decree  against  his  principal,  but  he  may  in- 
quire into  its  justness,   oh   origine.     He   may   set   up  and 
prove  any  defense  he  could  have  proved  in  the  original  suit, 


1  Fay  V.  Ames,  44  Barb.  327  ;  see 
also  Westervelt  v.  Smith,  2  Duer,  449. 

2  Jackson  u.  Griswold,  4  Hill.  522; 
Douglas  V.  Howlaud,  24  "Wencl    85. 

3  Lartigne  v.  Baldwin.  5  Mart.  Lou. 
193  ;  Beall  v.  Beck,  3  Harr.  and  McH. 
242  ;  McKeller  v.   Bowell,  4  Hawks. 


34  ;  Morris  v.  Lucas,  8  Blkf .  9  ;  King 
V.  Norman,  4  C.  B.  884. 

*  Munford  v.  Overseers,  2  Eand. 
313  ;  Jacobs  v.  Hill,  2  Leigh,  393  ; 
Baker  v.  Preston,  1  Gilmer,  235;  Ees- 
publicau.  Davis,  3  Yeates,  128;  Lucas 
f.  Curry,  2  Bai.  403. 

191 


?181 


LAW  OF  JUDGIilENTS, 


[Chap.  IX. 


if  lie  had  been  a  party  to  it."'  In  Ohio,  the  surety  may 
impeach  the  judgment  for  coUusion  or  for  mistake.  But 
until  so  impeached,  it  is  sufficient  to  entitle  plaintiff  to  re- 
cover the  amount  for  which  it  was  rendered.  ~  In  one  of 
the  Circuit  Courts  of  the  United  States,  the  rule  is  laid 
down  that  the  surety  may  show  fraud  or  collusion,  or  that 
the  debt  has  been  paid,  or  that  there  was  a  clerical  mistake 
in  entering  judgment.  ^  A  bond  Avas  given  to  the  State  to 
the  effect  that  the  principal  would  not  keep  a  disorderly 
house.  In  an  action  against  the  surety  upon  the  bond,  it 
was  held  that  the  conviction  of  the  principal  in  a  criminal 
prosecution  for  keeping  a  disorderly  house,  was  prima  facie 
evidence  against  the  surety.'' 

A  judgment  against  a  surety,  obtained  without  fraud  or 
collusion,  in  an  action  of  which  the  principal  or  any  co- 
surety had  notice,  is  conclusive  in  favor  of  the  surety  in  an 
action  against  the  principal  or  the  co-surety  for  contribu- 
tion.^ If  a  judgment  rendered  against  a  principal  and  a 
surety  upon  their  bond  be  paid  by  the  latter,  the  former 
cannot,  in  a  suit  to  recover  from  him  the  amount  thus  paid, 
show  want  of  consideration  in  the  bond.  "^ 

^  181.  Notice  to  Indemnitors. — In  many  cases  it  hap- 
pens, that  if,  by  reason  of  the  finding  of  certain*  facts,  one 
of  the  parties  to  the  suit  is  in  any  respect  damaged,  he,  in 
turn,  has  the  right  to  recover  back  the  amount  of  damages 
from  some  other  person,  not  a  party  to  the  present  litigation. 
The  person  thus  exposed  to  a  loss  which  some  one  has,  in 
effect,  covenanted  against,  may  make  his  covenantor  a  party 
to  the  present  suit,  and  may  thus  avoid  the  peril  and  incon- 
venience of  being  required  to  establish  against  his 
covenantor,  in  a  subsequent  controversy,  the  facts  which 
may  be  established  by  the  plaintifT  in  the  present  suit.'' 
In  order  to  become  thus  bound  the  covenantor  must 
be  tendered  "a  full,  fair  and  previous  opportunity  to 
meet  the  controversy,"  and  it  is  not  sufficient  that  he 
happened  to    be   present    in  court,    and   may  have   cross- 


1  Bryant  v.  Owen,  1  Ga.  355;  Brad- 
Icy  V.  Spencer,  16  Geo.  578. 

2  State  >;.  Colerick,  3  Hanim.  487. 

3  Berger  v.  Wiiliams,  4  McL.  577. 

192 


4  Webb  V.  State,  4  Cold.  199. 

5  Love  V.  Gibson,  2  Flor.  598. 
c  Pitts  V.  Fugate,  41  Mo.  405. 
TKonitzlcy  v.  Meyer,  49  N.  Y.  471. 


Cliap.  IX.]  NOTICE  TO  INDEMNITOES.  §181 

examined  the  witnesses.^     In  general,  the  fact    that    the 
covenantor    appeared    and    conducted    the    defense   is  of 
itself    sufficient   proof   that   he    had    due    notice   of    the 
action,  and  a  full    and  fair    opportunity  to   contest   it  on 
the    merits,^      But   in    the    absence  of    such    appearance 
the    question    arises,    whether    he  was    given  such  notice 
of    the    suit    as   made    him    responsible    for    its  termina- 
tion.    In  respect  to  such  notices  it  is  said  that  they  must 
be  clear  and  precise ;  must  inform  the  person  to  whom  they 
are  addressed,  that  he  must  appear  and  defend  or  be  es- 
topped from  a   defense  upon  his  covenant;  and  must  be 
given  so  as  to  afford  a  reasonable  time  for  him  to  prepare 
for  the  trial  .^     The  necessity  of  proof  of  such  a  notice  can 
not  be  avoided  by  showing  that  the  warrantor  sought  to  be 
bound,    knew   and   talked   of  the   action,  said   he  had  an 
agreement  which  would  defeat  it,  and  was  informed  of  the 
time  and  place  of  the  trial.*     "If  a  party  to  a  suit  has  the 
right  to  resort  to  another  upon  his  failure  in  the  action, 
whether  upon  covenants  of  warranty  or  on  the  ground  that 
he  is  indemnified  by  such  third  party,  then  it  is  clearly  his 
duty  to  give  full  notice  to  his  covenantor  or  indemnitor  of 
the  pendency  of  the  suit,  what  it  is  he  requires  him  to  do 
in  the  suit,  and  the  consequences  which  may  follow  if  he 
neglects   to   defend;   mere    knowledge  of  the  existence  of 
such  action  is  entirely  insufficient  to  bind  the  party  by  the 
judgment,  unless  he  is  notified  to  furnish  testimony,  or  to 
defend  the  action  or  to  aid  in  it,  he  may  well  suppose  the 
party  to  be  in  need  of  no  assistance,  and  he  may  well  rely 
upon  that  supposition,  for  if  the  party  desires  his  aid,  it  is 
his  duty  to  give  him  a  full  notice,  a  reasonable  time  before 
the  trial   of  the  action,  to  enable  him  to  prepare  for  it.^ 
In  an  action  against  a  city  for  a  defect  in  one  of  its  high- 
ways, caused  by  A.,  the  judgment  against  the  city,  if  A.  be 
notified   of  the   suit,    is   conclusive   in  a  subsequent   suit 
against  him  by  the  city,  in  relation  to  the  existence  of  the 


4Paulr>.  Whitman,  3  W.  and  S. 409. 
5  Sampson  v.  Ohleyer,  22  Cul.  200, 
Peabody  -;.  Phelps,  9  Cal.  213. 


1  Turpin  u.  Thomas,  2  Hen.  and  M. 
139. 

sHardingu.  Larkiu,  41  111.  413. 
3  Boyd  V.   Whitfield,    19   Ark.  447; 
Davis  V.  Wilbourne,  1  Hill.  S.  C.  28. 

(13)  193 


gl81  LAW  OF  JUDGMENTS.  .[Chap.  IX. 

defect,  tlie  amount  of  injury  to  the  individual,  and  the  fact 
of  the  exercise  of  due  caution  by  the  party  injured.  ^     Some 
recent  decisions  in  courts  of  very  high  authority,  enforcing 
the  rights  of  a  city  to  recover  back  from  a  property  holder 
a  sum  which  she  has  been  compelled  to  pay,  on  account  of 
his  act  or  negligence,  for  personal  injuries  occasioned  by  a 
defect  in  her  highways,  cither  establish  an  exception  to  the 
usual  rule  in  regard  to  notices  to  defend,  or  else  dispense 
with  several  essentials  of  such  notices,  as  the  law  was  for- 
merly understood.     In  Massachusetts,  it  is  sufficient  to  bind 
the  property  holder  by  the  judgment  against  the  city,  if  he 
had  notice  of  the  pendency  of  the  suit,  and  of  the  fact  that 
the  city  intended  to  hold  him  responsible,  and  had  an  op- 
portunity to  furnish  evidence,  though  he  did  not  take  upon 
himself  the  defense  of  the  suit,  and  was  not  requested  to  do 
so.'*     Cases  in  the  Supreme  Court  of  the  United  States  go 
much  farther  in  the  same  direction.     In  the  first  of  these 
cases  it  is  maintained  that  a  property  owner  who  knows  of 
the  suit  pending  against  the  city  for  damages  in  front  of  his 
lot,  is,  in  an  action  against  him  by  the  city,  bound  by  the 
judgment  against  the  cH}^;  and  upon  such  judgment  being 
produced,  can  only  show  in  his  defense,  that  the  damages 
were  caused,  or  contributed  to,  by  the  city  herself.     It  is 
not  necessary  that  any  notice  be  served  informing  him  that 
the  city  will  hold  Vi^^  responsible.'      In  a  later  case  in- 
volving similar  issues,  the  court  said:  "  Ex:press  notice  is 
not  required;  nor  was  it  necessary  for  the  officers  of  the 
corporation  to  have  notified  him  that  they  would  look  to 
him  for  indemnity.      The  conclusive  efi"ect  of  a  judgment 
respecting  the  same  cause  of  action,  and  between  the  same 
parties,  rests  upon  the  just  and  expedient  axiom  that  it  is 
for  the  interest  of  the  community  that  a  limit  should  be 
opposed  to  the  continuance  of  litigation  ;   that  the  same 
cause  of  action  should  not  be  brought  twice  to  a  final  deter- 
mination.    Parties  include  all  who  are  directly  interested 
in  the  subject  matter,  and  who  have  the  right  to  make  de- 


iCity   of   Portland  v.  Fdcliardson ; 
54Me.'4C. 

2  Boston  V.  Wortliington,  10   Gray, 

194 


49G;  Inhabitants  v.   Holbrook,  9  Al- 
len, 17. 

3  City    of    Chicago  u.    Eobbins,    2 
Black,  U.  S.  418. 


Cliap.  IX.]      OFFICERS  AND  THEIR  IXDEMNITOLS.         g §181-18-1 

fense,  control  the  proceedings,  examine  and  cross-examine 
witnesses,  and  to  appeal  from  the  judgment.  Persons  not 
having  those  rights,  substantially,  are  regarded  as  strangers 
to  the  cause ;  but  all  who  are  directly  interested  in  the  suit 
and  have  knowledge  of  its  pendencj^,  and  who  refuse  or 
neglect  to  appear  and  avail  themselves  of  these  rights,  are 
equally  concluded  by  the  proceedings.'"^ 

§  182.  Attachment  Proceedings.  —  If  property  is  at- 
tached, and  the  defendants  in  the  attachment  or  the  general 
assignees  put  in  their  claim  to  the  property,  and  are  heard 
in  full  in  reference  to  such  claim,  they  become  parties  to 
the  proceeding,  and  bound  by  the  judgment.'  Any  cred- 
itor, who  defends  an  attachment,  on  the  ground  that  the 
debt  attached  is  due  to  him  is  precluded,  if  he  fail  in  his 
defense,  from  contesting  the  validity  of  the  attachment  as 
against  the  plaintiff,  or  as  against  the  garnishee.^ 

§  183.  Bailee  or  Bailor. — If,  in  an  action  against  the  bailee 
for  the  property,  the  bailor  employed  counsel,  and  managed 
the  case,  and  put  his  title  in  issue,  as  a  defense  for  the 
bailee,  the  judgment  is  conclusive  on  all  the  title  of  the 
bailor  at  the  time  of  its  rendition.* 

§  184.  Officers  and  their  Indemnitcrs.  —  A.  party  who 
indemnifies  an  attaching  officer,  and  who,  when  suit  is 
brought,  appears  and  has  complete  control  of  its  defense, 
is  bound  by  the  judgment  as  an  estoppel,  in  a  subsequent 
litigation,  to  the  same  extent  as  if  he  were  a  party  to  the 
record  \^  he  is  equally  bound  where,  though  not  participat- 
ing in  the  conduct  of  the  suit,  he  was  given  due  notice  of 
the  action,  and  was  tendered  an  opportunity  to  assist  in  its 
defense.^  If  no  notice  of  the  suit  be  given,  and  no  oppor- 
tunity is  allowed  him  to  make  a  defense,  the  judgment  is 
but  'prima  facie  evidence  against  the  indemnitor.^     "Cove- 


1  Eobbins  v.  City  of  Chicago,  4 
Wall.  G58. 

2  Moore  v.  Speckman,  12  S.  &  S. 
R.  287. 

^  Coates  V.  Eoberts,  4  Ilawl.  104  ; 
Richards  v.  Watson,  23  Mo.  34;  Tarle- 
ton  V.  Johnson,  25  Ala.  300, 


*  Tarleton  v.  Johnson,  25  Ala.  300. 
5  Murray  t'.Lovejoy,  2  Clifford,  191; 
Lovejoy  u.  Murray,  3  Wall.  1. 

G  Miller  v.  Rhoads,  20  Ohio  S.  494. 

■J  Stewart  v.  Thomar,  45  Mo.  44. 


195 


gg  184-186  LAW  OF  JUDGMENTS.  [Chap.    IX. 

nants  to  indemnify  against  tlie  consequences  of  a  suit,  are 
of  two  classes.  1.  Where  the  covenantor  expressly  makes 
his  liability  depend  on  the  event  of  a  litigation  to  which  ho 
is  not  a  party,  and  stipulates  to  abide  the  result ;  and  2, 
where  the  covenant  is  one  of  general  indemnity  merely, 
against  claims  or  suits.  In  cases  of  the  first  class,  the 
judgment  is  conclusive  evidence  against  the  indemnitor, 
although  he  was  not  a  i:)arty,  and  had  no  notice  ;  for  its  re- 
covery is  the  event  against  which  he  covenanted.^  In  those 
of  the  second  class,  the  judgment  is  prima  facie  evidence 
only  against  the  indemnitor,  and  he  may  be  let  in  to  show 
that  the  principal  had  a  good  defense  to  the  claim. ^  In 
each  of  the  classes  of  cases  above  mentioned,  the  indemni- 
tor is,  of  course,  understood  as  saving  the  right,  which  the 
law  gives  in  every  case  where  the  suit  is  between  third  per- 
sons, of  contesting  the  proceeding  on  the  ground  of  collu- 
sion, for  the  purpose  of  charging  him. 


"3 


g  185.  Tenant  and  Landlord.  —  A  landlord,  having  no- 
tice, and  defending  an  action  of  ejectment  in  the  name  of 
his  tenant,  cannot  afterward,  in  a  controversy  with  the  lat- 
ter, show  that  his  eviction,  under  the  judgment,  was  not 
by  title  paramount."  But  a  tenant  cannot  justify  his  attorn- 
ment to  a  third  person  by  merely  showing  that  such  party 
has  recovered  a  judgment  against  him  for  the  possession  of 
the  premises.  He  must  go  further,  and  show  that  his  land- 
lord was  notified  of  the  pendency  of  the  action,  and  had  an 
opportunity  to  defend,  otherwise  the  landlord  is  neither 
bound  nor  estopped  by  the  judgment.^'' 

§  18G.  Vendee  and  Vendor. — A  purchaser,  or  any  sub- 
sequent vendee,  upon  being  sued  for  the  property,  in  trover 
or  replevin,  or  in  any  action  involving  the  title,  may  give 
notice  of  the  pendency  and  nature  of  tlie  suit,  to  the  original 
vendor,  and  require  him  to  defend,  or  to  assist  in  defending 


»  Patton  V.  Caldwell,  1  Dali.  419. 
2Duffiel(l  V.   Scott,    3  T.  R.    374 
Smith  V.  Campton,  3  B.  &  A.  407 


3  Bridgeport  Insurance  Co.  v.  Wil- 
son, 34  N.  Y.  280. 

*  Wheelock  v.  Warschauer,  34  Cal. 


Lee  V.  Clarlc,  1  Hill,  50;  Kapclye  u.   205. 

Prince,  4  Hill,  119;  Aberdeen  r.  Block-       ^a  Douglass  v.  Fulda,  45  Cal.  592; 

mer,  0  Hill,  321.  I  5  Pac.  Law  Pv.    102. 

196 


Cliap.    IX.]  TVARriANTEE  AND   WAEEAXTOR. 


§P8G-187 


the  same,  and  after  such  notice,  the  vendor,  whether  he 
defends  or  not,  cannot  question  the  finding  of  title  involved 
in  the  judgment.'  But  the  judgment  is  conclusive  against 
the  vendor,  though  not  notified  of  the  suit,  if  he  appear  as 
a  witness  and  testify  that  he  had  no  title  at  the  date  of  his 
sale.^  In  all  other  cases,  no  judgment,  whereby  a  third 
party  has  recovered  property  from  a  vendee,  can  be  given 
in  evidence,  to  show  want  of  title  in  the  vendor,  unless  he 
was  notified  of  the  suit.''  If  a  sheriff  levy  upon  property 
and  is  sued  by  a  claimant  thereof,  and  in  such  suit  the 
claimant  is  defeated,  such  judgment  is  conclusive  against 
the  claimant  in  a  controversy  between  him  and  a  person 
who  derives  title  to  the  property  through  a  sale  made  under 
such  levy.* 

§  187.  Warrantee  and  Warrantor. — As  the  sale  of  per- 
sonal property  always  involves  a  warranty  of  title,  the  rules 
and  proceedings  there  applicable  in  fixing  the  liability  of 
the  vendor  to  his  vendee  upon  recovery  of  the  property  by 
some  claimant,  are  also  applicable  to  a  vendor  of  real  estate 
with  a  covenant  of  warranty  of  title,  when  he  is  sought  to 
be  made  liable  to  his  vendee,  claiming  to  have  been  evicted 
under  title  paramount.  Any  judgment  by  which  the  warran- 
tee is  dispossessed,  if  after  proper  notice  to  his  warrantor, 
"is  plenary  evidence  against  the  warrantor,  in  a  suit  on  the 
warranty."^  A  warrantor  sought  to  escaj)e  from  the  result 
of  a  judgment,  on  the  ground  that  the  warrantee  had  been 
called  as  a  witness  by  plaintiff,  at  the  trial.  The  court 
said :  ' '  There  are  authorities  to  the  point  that  the  record  of 
a  verdict  and  judgment  cannot  be  used  in  favor  of  one, 
who,  by  his  evidence,  has  contributed  to  their  recovery. 
But  this  court  is  of  opinion  that  this  exception  to  the  gen- 
eral rule  defining  the  parties  by  whom  evidence  may  be 
used,  would  introduce  an  inconvenient  collateral  inquiry, 


1  Thurston  v.  Spratt,  52  Maine,  202; 
Gist  V.  Davis,  2  Hill  Ch.  335;  Bender 
u.  Fromberge]^  4  Dallas,  436;  Hamil- 
ton V.  Cutts,  4  Tyng.  349. 

SBarney  v.  Dewey,  13  Johns.  224. 

3  Stephens  v.  Jack,  3  Yerg.  403; 
Jacob  V.  Pierce,  2  Eawle,  204. 


4  Prentiss r.  Holbrook,  2  Mich.  372. 

5  Hamilton  v.  Cutts,  4  Mass.  349; 
Knapp  V.  Marlboro,  34  Vt.  235 ;  Cham- 
berlain t;.  Preble,  11  Allen,  370;  Lit- 
tleton V.  Eichardsou,  34  N.  H.  187. 


197 


ggl87-189  LAW   OF  JLTDGMEXTS.  [CLap.  IX. 

and  tliat  no  practical  evil  will  result  from  maintaining  the 
general  rule  unimpaired,  and  that  it  is  important  that  the 
rules  of  evidence  should  be  broad  and  well  defined/  If  a 
person  guarantee  anything,  Avhether  real  or  personal,  to  be 
of  a  specified  quality  or  character,  he  may  be  brought  in 
privity  with  an  action,  to  which  his  guarantee  is  a  party, 
involving  the  character  or  quality  of  the  thing  guaranteed. 
Thus,  a  party  selling  a  note,  guaranteeing  it  to  be  valid,  may 
be  required  to  prosecute  an  action,  in  which  a  defense  has 
been  tendered,  involving  the  validity  of  the  note.  If  he 
neglects  to  do  so,  and  the  defense  is  successfully  made,  he 
may  not  in  a  suit  between  himself  and  his  vendee,  show 
that  the  note  was  valid. ^ 

§  188.  Parties  not  Obliged  to  Conduct  Suit. — It  seems 
that  there  are  cases  where,  although  a  party  to  a  suit  may 
have  the  right  to  recover  over  against  another,  yet  he  is 
not  permitted  to  make  such  other  person  a  party  to  the  liti- 
gation. A.,  having  left  a  note  with  a  bank,  afterward  sued 
it  for  neglecting  to  give  notice  to  the  endorsers.  This  bank, 
claiming  that  the  negligence  was  attributable  to  its  cashier, 
notified  him  of  the  suit,  and  that  he  would  be  held  respon- 
sible. He  was  offered  the  defense,  but  declined  to  under- 
take it.  A.  recovered  judgment.  After  this  the  bank  sued 
its  cashier  for  negligence.  The  judgment  against  the  bank 
was  treated  as  admissible  evidence  to  show  the  fact  and  the 
amount  of  the  recovery  which  had  been  had  against  plaint- 
iffs; but  not  for  any  other  purpose,  because,  "This  is 
not  a  case  where  recovery  over  had  been  given  by  law  or 
provided  by  contract  between  the  parties,"  and  because  the 
question  whether  the  negligence  was  chargeable  to  the 
cashier,  neither  was  nor  could  be  litigated  in  the  former 
suit.'' 

§189.  Not  Bound  by  Assisting  in.  the  Suit — Unless 
a  person  is  one  of  the  real  or  nominal  parties  to  the 
suit,  or  is  so  identified  in  interest  with  some  of  such 
parties   that   he  is   obliged  to  participate  in  the    conduct 


1  Griffiu  V.   rtuyuokls,  17   How.   U. 
S.  609. 

2  Carpenter  v.  Pier,  30  Vt.  81. 

198 


•■i]);i.nk   of  Oswego    v.   Babcock,   5 
Hill,  152. 


Chap.    IX.]       DISTRIBUTEES  OF   COMMON  FUND.  §§189-190 

of  the  proceedings,  if  requested,  he  cannot  be  bound  by 
the  judgment.  The  fact  that  he  managed  the  cause  as 
agent^  or  attorney'  will  not  preclude  him  from  impeaching 
the  judgment.  Neither  will  his  being  present  at  the  trial 
as  a  witness,  though  interested  in  the  subject  matter  of  the 
controversy,  bind  him  by  the  result.  Thus,  where  A.  sued 
a  sheriff  for  a  horse  levied  upon  as  the  property  of  B.,  and 
recovered  judgment,  B.  being  present  and  testifying  at  the 
trial,  it  Avas  held  in  a  subsequent  suit  by  B.  against  A.  for 
the  same  horse,  that  "It  is  of  no  consequence,  'prima  facie, 
that  the  plaintiff  was  a  witness  for  the  defendant  in  the  ac- 
tion brought  by  this  defendant.  He  had  no  right  as  a 
witness  to  examine  or  cross-examine  other  witnesses,  or  to 
call  other  witnesses  who  might  have  better  knowledge  of 
'  the  facts  than  himself.  A  mere  witness  has  no  control  over 
a  case  whatever,  and  has  no  right  to  appeal.  The  plaintiff 
here  was  under  no  obligation,  legal  or  moral,  to  defend  for 
the  sheriff,  and  he  had  no  right  to  defend  or  to  interfere, "3 
Even  an  agreement  between  several  persons,  by  which  each 
was  to  be  bound  by  a  verdict,  and  to  have  the  right  to 
cross-examine  the  witnesses,  was  regarded  as  insufficient  to 
make  the  judgment  binding  on  any  of  the  parties  who 
would  not  have  been  bound  by  it  in  the  absence  of  such 
agreement.* 


"O' 


§  190.  Distributees  of  Common  Fund. — "  The  principle 
is  well  settled  in  respect  to  proceedings  in  chancery  for 
the  distribution  of  a  common  fund  among  the  several  par- 
ties in  interest  therein,  either  on  application  of  the  trustee 
of  the  fund,  or  of  the  administrator,  legatee,  or  next  of  kin, 
or  on  the  application  of  any  party  in  interest,  that  an  absent 
party  who  had  no  notice  of  the  proceedings,  and  not  guilty 
of  willful  laches  or  unreasonable  neglect,  will  not  be  con- 
cluded by  the  decree  of  distribution,  from  the  assertion  of 
his  right  by  bill  or  petition  against  the  trustee,  executor  or 
administrator ;  or,  in  case  they  have  distributed  the  fund  in 
pursuance  of  an  order  of  the  court,  against  the  distributees.  "^ 


1  Thrasher  v.  Haines,  2  N.  H.  443. 

2  Breedlove  v.  Turner,  9  Mart.  Lou. 
353,  375. 

3  Yorks  V.  Steel,  50  Barb.  397. 


1  Patton  V.  Caldwell,  1  Dallas,  419. 
^  Williams  v.  Gibbes,  17  How.  U.  S. 
239. 


199 


gl91  LAW  OF  JUDGMENTS.  [Cliap.    X. 


CHAPTER  X. 

PERSONS  BOUND  BY  LIS  PENDENS. 

1 191.  Reasons  for  Law  of. 

§  192.  Law  of,  applies  to  suits  at  LA.W  and  in  Equity. 

§  193.  Transfers /><;).■  <Zc»«c'  liU  cannot  prejudice  suit. 

§  194.  Property,  bound  by. 

§  195.  Commencement  of. 

§  19G.  Suit  must  affect  specific  property. 

§  197.  Property  must  be  pointed  out  by  the  pleadings. 

§  198.  Is  notice  of  all  material  facts  in  the  jjleadings. 

§  199.  Amendments  of  pleadings. 

§  200.  No  lis  pendens  between  co-plaintifis  or  co-defendants. 

§  201.  Affects  none  hut  pendente  lite  alienees  and  incumbrancers. 

§  202.  Diligence  in  Prosecution. 

§  203.  Revivor. 

§  204.  Dismissal,  without  prejudice. 

§  205.  Writs  of  Error  and  Bills  of  Review. 

S  206.  Termination  of  ^tsperecZens. 

§  207.  Lis  Pendens,  with  the  property  in  court. 

§  208.  Involuntary  Transfers. 

§  209.  Vendee  of  a  Vendee. 

§  210.  Confined  to  State  where  Property  is  situate. 

§211.  Attorney's  Lien. 

§  212.  Statutes. 

§  213.  Ejectment  in  California. 

§  214.  Notice  may  be  filed  before  the  complaint. 

§  191.  Reasons  for  Law  of  Lis  Pendens. — Besides  the 
nomiual  parties  to  a  judgmeut  or  decree,  many  others  are 
brought  within  its  influence,  and  made  to  respect  its  com- 
mands and  to  abide  by  its  settlements.  Prominent  among 
these  parties,  are  all  those  persons  who  have  brought  them- 
selves within  the  principles  involved  in  the  law  of  Us  pendens. 
The  rules  applied  to  third  persons,  becoming  interested  in 
the  subject  matter  in  litigation,  by  acquiring  the  title  of 
one  of  the  parties  to  the  controversy,  pendcide  lite,  have 
been  explained  and  justified  upon  the  assumption  that  those 
rules  were  based  upon  notice,  actual  or  constructive.  It 
has  been  said  "that  all  people  are  supposed  to  be  attentive 
to  what  passes  in  courts  of  justice,"^  and  that,  from  being 
attentive,  thej'  must  be  informed  of  the  various  matters  in 
process  of  litigation  in  those  courts.  But  the  more  reason- 
able view  is  that  the  law  of  lis  pendens  is  not  based  upon 

1  Worsley  v.  Earl  of  Scarborough,  3  Atk.  392;  Green  v.  White,  7  Blkf.  2i2. 

200 


Chap.    X.]       REASONS  FOR  LAW  OF  LIS  PENDENS.  gl91 

presumptions  of  notice ;  but  upon  a  public  policy,  impera- 
tively demanded  by  a  necessity  wliicli  can  be  met  and  over- 
come in  no  other  manner.  ^     "  It  is  a  careless  use  of  language 
which  has  led  judges  to  speak  of  it"  (Us  pendens)  "as  notice 
because  it  happens  to  have,  in  some  instances,  a  similar 
effect  with  notice."-     "The  justice  of  the  court  Avould  be 
wholly  evaded,  by  aliening  the  lands  after  subpena  served, 
and  the  suitor  subject  to  great  delay,  expense  and  incon- 
venience,   without   any  certainty  of  at  last   securing  his 
interest.^     In  fact,   the  doctrine  of  lis  -pendens,  as  under- 
stood and   enforced  at    common  law,    does  not    seem  to 
have   required    even   such    constructive   notice   as    would 
in   all    cases  put    a  man   of    ordinary    sagacity    on    his 
guard,   or  as  would  have  enabled  him  to  ascertain  whether 
the  property  in  which  he  desired  to  acquire  an  interest, 
was   involved    in  litigation.      The   commencement    of    lis 
pendens  dated  from  the  service  of  the  subpena,  though  it 
was  not  returnable  until  the  next  term.     No  lis  pendens  ex- 
isted until  the  bill  was  filed,  yet  the  filing  being  made,  the 
lis  pendens,  by  relation,  was  considered  as  in  force  from  the 
service  of  the  subpena.     Under  such  a  system,  it  might  fre- 
quently happen  that  a  man  would  be  bound  by  a  suit  whose 
object  he  could  only  conjecture,  no  means  of  information 
being  accessible.     That  every  man  should  be  presumed  to 
be  present  in  the  courts  and  attentive  to  their  proceedings, 
is  a  most  unnatural  presumption — a  fiction  not  merely  im- 
probable,  but  impossible,  since  by  no  human  power  can 
one  man  be  at  all  times  in  attendance  upon  the  several  tri- 
bunals of  his  country,  in  which  claims  to  specific  property 
are  determined.     But  the  necessity  of  the  rules  of  lis  pen- 
dens is  so  apparent  and  so  unavoidable,  that  the  early  exist- 
ence and  continued  application  of  these  rules  were  indis- 
pensable to  a  wise  public  policy.     If,  during  the  pendency 
of  any  action,  at  law  or  in  equity,  the  claim  to  the  property 
in  controversy  could  be  transferred  from  the  parties  to  the 
suit  so  as  to  pass  to  a  third  party,  unaffected  either  by  the 
prior  proceedings  or  the  subsequent  result  of  the  litigation. 


^  Newman  v.  Chapman,  2  Eand.  98; 
Bellamy  v.  Sabine,  1  De  G.  &  J.  56G. 
sWatsonu.  Wilson,  2  Dana,  40G. 


sLudlow's  Heirs  v.  KiJd's  Ex.,  3 
Ohio,  541, 

201 


§191  L:UY  or  JUDGMENTS.  [Cliap.   X. 

then  all  transactions  in  our  courts  of  justice  would,  as 
against  men  of  ordinary  forethought,  prove  mere  idle  cere- 
monies. A.  series  of  alienations  protracted  into  the  bound- 
less future,  would  forever  preclude  the  prevailing  jmrty 
from  obtaining  that  to  which  he  had  vindicated  his  claim. 
The  necessity  of  Us  pendens  and  the  perils  which  it  was 
designed  to  avert,  were  thus  forcibly  stated  by  Chancellor 
Kent,  in  a  case  which  is  regarded  as  a  pioneer  in  the  United 
States  on  the  subject  on  which  it  treats,  and  which  enjoys 
the  distinction  of  being  quoted  and  approved  in  every  part 
of  our  country:  "The  counsel  for  the  defendants  have  made 
loud  complaints  of  the  injustice  of  the  rule,  bub  the  com- 
plaint was  not  properly  addressed  to  me  ;  for  if  it  is  a  well 
settled  rule,  I  am  bound  to  apply  it,  and  it  is  not  in  my 
power  to  dispense  with  it.  I  have  no  doubt  the  rale  will 
sometimes  operate  with  hardship  upon  a  purchaser  without 
actual  notice ;  but  this  seems  to  be  one  of  the  cases  in  which 
private  mischief  must  yield  to  general  convenience  ;  and, 
most  probably,  the  necessity  of  such  a  hard  application  of 
the  rule  will  not  arise  in  one  out  of  a  thousand  instances. 
On  the  other  hand,  we  may  be  assured  the  rule  would  not 
have  existed,  and  have  been  supported  for  centuries,  if  it 
had  not  been  founded  in  great  jjublic  utility.  Without  it, 
as  has  been  observed  in  some  of  the  cases,  a  man  upon  the 
service  of  a  subpena,  might  alienate  his  lands,  dind  prevent 
the  justice  of  the  court.  Its  decrees  might  be  wholly  evaded. 
In  this  very  case,  the  trustee  had  been  charged  with  a  gross 
breach  of  his  trust,  and  had  been  enjoined  by  the  process 
of  the  court,  six  months  before  the  sale  in  question,  from 
any  further  sales.  If  his  subsequent  sales  are  to  be  held 
valid,  what  temptation  is  held  out.  to  waste  the  trust  prop- 
erty, and  destroy  all  the  hopes  and  interests  of  the  cestui 
que  trust  ?  A  suit  in  chancery  is,  in  such  cases,  necessarily 
tedious  and  expensive,  and  years  may  elapse,  as  in  this  case, 
before  the  suit  can  be  brought  to  a  final  conclusion.  If  the 
property  is  to  remain  all  this  time  subject  to  his  disposition, 
in  spite  of  the  efforts  of  the  court  to  prevent  it,  the  rights 
of  that  helpless  portion  of  the  community,  whose  property 
is  most  frequently  held  in  trust,  will  be  put  in  extreme 
jeopardy.  To  bring  home  to  every  purchaser  the  charge  of 
20^ 


Chap.  X.]    IS  A  EULE  BOTH  AT  LAW  AND  IN  EQUITY.    §^01-193 

actual  notice  of  the  suit,  must,  from  the  very  nature  of  the 
case,  be,  in  a  great  degree,  impracticable."^ 

§  192.     Is  a  Rule  both  at  La-w  and  in  Equity. — In  the 

case  of  King  v.  Bill  (28  Conn.  p.  593),  the  statement  is 
made  that  lis  pendens  is  a  purely  equitable  rule,  recognizable 
only  in  equity.  This  case  is,  however,  chiefly,  if  not  exclu- 
sively, remarkable  for  the  clearness  and  precision  with 
which  it  misstates  the  law  of  lis  pendens.  It  has  no  force  as 
an  authority,  being  overruled  by  the  case  of  Neivton  v.  Birge, 
(35  Conn.  p.  250.)  According  to  the  opinion  of  Lord  Jus- 
tice Turner,  "  That  this  doctrine  belongs  to  a  court  of  law, 
no  less  than  to  courts  of  equity,  appears  from  a  passage  in 
2d  Inst.  375,  where  Lord  Coke,  referring  to  an  alienation 
by  a  mesne  lord  pending  a  writ,  says,  that  the  alienee  could 
not  take  advantage  of  a  particular  statute  of  Westminster, 
because  he  came  to  the  mesnalty  pendente  hrevi,  and  in  judg- 
ment of  law  the  mesne  as  to  the  plaintiff,  remains  seized  of 
the  mesnalty,  iom  pendente  lite  nihil  innovetur.'"'^ 

g  193.  It  is  now  a  universally  recognized  rule  of  law, 
that  no  alienation  or  transfer  of  the  subject  matter  of  the 
controversy,  made  while  the  suit  is  being  prosecuted  with 
due  diligence,  need  be  noticed  by  the  parties  to  the  action. 
Such  alienation,  though  valid  between  the  parties  thereto, 
is  void  as  against  the  judgment  or  decree  finally  rendered, 
in  the  suit.  ^ 


iMurray  v.  Ballou,  1  Jolin,  Ch.  p. 
566,  decided  iu  1815.  To  show  that 
lis  pendens  was  then  old  and  well 
established  in  our  law,  the  Chancellor 
quoted  the  ordinance  of  Lord  Bacon, 
that  ' '  no  decree  bindeth  any  that 
ccnieth  in  bona  fide,  by  conveyance 
from  the  defendant,  before  the  bill 
exhibited,  and  is  made  no  party, 
neither  by  bill  nor  order ;  but  where 
he  comes  in  x>endenie  lite,  and  while 
the  suit  is  in  full  prosecution,  and 
without  any  color  of  allowance  or 
privity  of  the  court,  there  regularly 
the  decree  bindeth;"  and  cited  the 
cases  of  Martin  v.  Stikes,  1  Cas.  in 
Ch.  150;  Culpepper  v.  Austin,  2  Ch. 


Cas.  115;  Garth  v.  Ward,  2  Atk.  174; 
Preston  u.  Tubbin,  1  Vern.  286;  Sorrel 
V.  Carpenter,  2  P.  Wens.  482;  Anon. 

I  Vern.  318;  Finch  v.  Newnham,  2 
Vern.  216;  Walker  v.  Smalwood,  Amb. 
G7G;  Bishop  of  Winchester  v.  Paine, 

II  Ves.  194.  For  a  very  similar  view 
of  Us  pendens,  see  Bellamy  u.  Sabine, 
1  De  G.  &  J.  5G6,  decided  in  1857; 
also  Haughwout  v.  Murphy,  22  N.  J. 
Eq.  544;  Metcalfe  v.  Pulvertoff,  2  V, 
&  B.  205. 

2  Bellamy  v.  Sabine,  7  De  G.  &  J. 
584;  Secombe  v.  Steele,  20  How.  U. 
S.  94. 

3 Norton  v.  Birge,  35  Conn.  250; 
Bayer  v.    Cockerill,    3   Kansas,    282; 

203 


n94 


LAW   OF   JUDGMENTS. 


[Chap.  X. 


§  194.  Property  bound  by. — Courts  liave  occasionally 
exhibited  a  reluctance  in  applying  the  doctrines  of  lis  pen- 
dens to  any  property  other  than  real  estate.  And  it  has 
been  said  that  at  least  no  movable  personal  property  to 
which  possession  constitutes  the  chief  evidence  of  title,  is 
bound  by  the  suit,  in  the  hands  of  a  bona  Jide  purchaser, 
without  notice.  But  "  it  may  be  conceded  that,  at  this  day, 
lis  pendens  applies  with  equal  force  to  controversies  in  re- 
gard to  personal  property.  "^     The  only  exception  to  this 


1  McCutclieniJ.  Miller,  31  Miss.  65; 
Tabb  V.  Williams,  4  Jones  Eq.  352; 
Murray  v.  Ballon,  1  Jobus.  Cb.  5G6; 
For  application   to  negotiable  notes 
past  due,  see  Kellogg  v.  Fancber,  23 
Wis.  21;  topurcbase  of  a  patent  pend- 
ing litigation,  tobave  it  declared  void, 
Tyler  v.  Hyde,  2  Blatcbf.  308;  to  suit 
to   subject  bank   stock   to  a   certain 
trust,   Leitcb  v.  Wells,  48  Barb.  G37; 
to  [creditor's  bill  to  reacb  furniture 
Scudder  v.  Van  Amburgb,  4  Ed.  Cb. 
29;  to  railroad  bonds  in  Pennsylvania, 
■where  such  bonds,  contrary  to  the  de- 
cisions in  other  States,  are  held  non- 
negotiable.      Diamond   v.   Lawrence 
County,  37  Penn.  S.  353.     See,  bow- 
ever,    Chase  v.   Searles,    45    N.    II., 


511,  where  the  application  of  lis  pen- 
dens to  personalty,  seems  to  be  doubted 
in  general,  and  to  be  altogether  denied 
as  to  personal  property,  sought  to  be 
made  available  to  the  satisfaction  of  a 
judgment,  by  means  of  a  creditor's 
bill.  The  case  of  Leitch  v.  Wells, 
referred  to  in  this  note  has  been  re- 
versed upon  appeal.  Three  of  the 
commissioners  of  appeals  by  whom 
the  case  was  decided,  wrote  separate 
opinions  each,  assigning  somewhat 
different  grounds  from  those  urged  by 
bis  brethren  for  the  reversal.  Upon 
the  question  whether  the  property  in 
controversy  was  of  such  a  nature  that 
it  could  be  bound  by  lis penderis,  Com- 
missioner   Earl    wrote     as    follows : 


Lee  V.  Salinas,  15  Tex^  495;  Meux  v. 
Anthony,  G  Eng.  411;  Shotwcll  v- 
Lawson,  30  Miss.  27;  Waldeu  v.  Bod- 
ley's  Heirs,  9  How.  U.  S.  34;  Copen- 
heaver  v.  Huffaker,  6  B.  Monr.  18; 
Jackson  v.  Warren,  32  111.  331; 
Loomis  V.  Eilcy,  24  111.  307;  Inloe's 
Lessee  I).  Harvey,  11  Md.  519;  Sharp 
V.  Lumley,  34  Cal.  GU;  Barrelli  v. 
Delassus,  16  La.  An.  280;  Calderwood 
T.  Tevis,  23  Cal.  335;  Horn  v.  Jones, 

28  Cal.  194;  Montgomery  v.  Byers, 
21  Cal.  107;    Bouldens  v.  Lanabau, 

29  Md.  200;  Hurlbutt  v.  Bultenop,  27 
Cal.  50;  Truitt  v.  Truitt,  38  Ind.  16; 
Commonwealth  v.  Dieffenbacb,  3  Gr. 
Cas.  368;  Hughes  v.  Whittaker,  4 
Heisk.  399.  The  nile  is  as  applicable 
to  incumbrancers  as  to  purchasers. 
Youugman  v.  Elmira  R.  R.  Co.,    65 

204 


Peuu.  S.  278;  xVIassou  v.  Saloy,  12 
La.  An.  776;  and  affects  purchasers 
at  sheriff's  sale  to  the  same  extent  as 
if  the  alienation  was  voluntary.  Fash 
V.  Ravesies,  32  Ala.  451;  Steele  v. 
Taylor,  1  Minn.  274;  Hall  v.  Jack,  32 
Md.  253:  Hersey  v.  Turbett  27  Penn. 
S.  418;  Cooley  v.  Bray  ton,  16  Iowa, 
10;  Hart  v.  Marshall,  4  Minn.  294; 
Crooker  v.  Crooker,  57  Mai.  395; 
Berry  v.  Whitaker,  58  Mai.  422.  In 
McPh^rson  v.  Housel,  2  Beas.  Ch. 
299,  it  was  decided  that  the  vendee  of 
the  defendant  in  a  foreclosure  suit 
takes  the  property,  subject  to  all  costs 
which  may  be  made  in  Ihe  case,  in- 
cluding those  occasioned  by  an  ap- 
peal, prosecuted  by  the  defendant 
subsequently  to  his  conveyance. 


Chap.  X.] 


COMMENCEMENT. 


|§194-195 


concession  is  negotiable  paper,  not  jDast  due.  ^  "When  siicli 
paper  is  the  subject  of  tlie  suit,  the  court  ought  to  require 
it  to  be  brought  into  court,  or  so  placed  that  the  defendant 
cannot  commit  a  fraud  upon  the  law  by  making  the  judg- 
ment unavailable.-  Every  consideration  of  necessity  and 
of  public  policy  which  demands  and  justifies  the  law  of 
lis  pendens  as  applied  to  real  estate,  also  demands  and  justi- 
fies the  application  of  the  same  law  to  personal  property. 
In  fact,  the  ease  with  which  personalty  could  be  transferred 
to  parties  having  no  notice  of  the  litigation,  is  much  greater 
than  in  the  case  of  real  estate.  The  probability  of  the  de- 
fendant's entirely  defeating  the  object  of  the  suit,  by  a  trans- 
fer of  the  property  pendenle  lite,  is  rather  greater  in  the  case 
of  personal  than  of  real  estate,  and  the  necessity  of  some 
law,  prohibiting  such  transfer,  to  the  prejudice  of  the  pre- 
vailing party,  is  therefore  greater  in  the  former  case  than  in 
the  latter.  But  the  necessity  of  preserving  the  negotiable 
character  of  negotiable  paper,  not  due,  so  as  to  require  no 
inquiry  beyond  inspection  of  the  paper  itself,  in  relation  to 
its  ownership,  has  properly  been  considered  paramount  to 
the  necessity  of  avoiding  transfers  ijendente  lite,  and  that 
clsss  of  paper,  therefore,  is  the  only  property  not  liable  to 
be  affected  by  the  doctrine  of  lis  'pendens. 

g  195.     Commeneement. — Lis  pendens,  except  when  some 
statute  provides  otherwise,  begins  from  the  service  of  the 


1  Winston  v.  Westfield,  22  Ala. 
76©  ;  Mims.  v.  "West,  38  Geo.  18;  Day 
V.  Zimmerman,  08  Pa.  S.  72. 


3  Stone  V.  Elliott,  11  Ohio,  S.  252; 
Keiffer  v.  Ehler,  IS  Penn.  S.  388. 


"Since  the  decision  of  McNeil  v. 
Tenth  National  Bank  (46  N.  Y.  325), 
certificates  of  stock,  with  blank  as- 
signments and  powers  of  attorney  at- 
tached, must  be  nearly  as  negotiable 
as  commercial  paper.  The  doctrine 
of  constructive  /w  pendens  has  never 
yet  been  applied  to  such  property. 
This  doctrine  must  have  its  limita- 
tions. It  could  not  be  applied  to 
ordinary  commercial  paper,  nor  to 
billi  of  lading,  uor  to  government  or 


corporate  bonds,  payable  to  bearer. 
Indeed,  I  do  not  find  that  it  has  ever 
been  applied,  and  I  do  not  think  it 
ought  to  be  applied,  to  any  of  the 
ordinary  articles  of  commerce.  Pub- 
lic policy  does  not  require  that  it 
shoiild  be  thus  applied.  On  the  con- 
trary, its  application  to  such  property 
would  work  great  mischief,  and  lead 
to  great  embarrassments."  Leitch  v. 
Wells,  48  N.  Y,  613. 

205 


gl95  LAW   OF  JUDGMENTS.  [Cliap.    X. 

process  or  subpena,  and  not  before'     It  is  also  necessary, 
at  common  law,  tliat  a  bill  be  filecT,  but  npon  such  filing  the 
lis  2'>end€ns  begins,  from  the  service  of  the  subpena.-     In 
Wisconsin,  under  the  Code,  a  summons  and  complaint  in  a 
proceeding  to  obtain  an  injunction,  may  be  served  before 
either  is  filed  in  court.     Property  intended  to  be  affected 
by  such  a  proceeding,  having  been  transferred  hona  fide 
without  notice,  after  service  on  the  defendant,  but  before 
filing  of  the  papers  in  court,  it  was  held  that  the  doctrine  of 
lis  ijendens  ought  not  to  be  applied  where  there  was  no  rec- 
ord of  the  suit,  although  the  process  had  been  served.     That 
while  there  is  no  hardship  in  requiring  purchasers  to  exam- 
ine the  records  of  the  count}',  there  is  a  manifest  hardship 
in  requiring  them  to  take  notice  of  that  wliicli  no  examina- 
tion, however  patient  and  industrious,  could  reveal,  and 
that  no  case  exists,  under  the  Code,  enforcing  Us  pendens 
before  papers  are  filed,  and  none  ought  to  exist.''     The  doc- 
trine that  upon  the  filing  of  the  bill  or  complaint,  the  lis 
pendens  takes  effect  at  an  interior  date  corresponding  with 
the  date  of  the  service  of  the  subpena,  has  been  most  em- 
phatically repudiated.      This,  doctrine  is   based   upon  an 
anonymous  case  decided  in  1G85,  and  reported  in  1  Vern. 
318.     This  case,  it  is  claimed,  has  never  been  affirmed  or 
approved  in  any  manner,  in  the  almost  two  centuries  of 
time  intervening  since  its  decision.     But  on  the  other  hand 
it  may  also  be  claimed  to  have  stood  during  that  long  period 
of  time  without  being,  until  very  recently,  made  the  subject 
of  judicial  dissent.      The  following  are  the  views  of  Mr. 
Commissioner  Earl,   expressed   in   the   case   of   Leitch  v. 
Wells,  and  sanctioned  by  the  judgment  entered  in  that  case 
by  the  Commission  of  Appeals  of  the  State  of  New  York : 
"Suits  in  equity  may  now  be  commenced  by  the  service  of 
the  summons  alone ;  but  it  would  be  quite  monstrous  to  hold 
that  the  suit  shall  be  deemed  pending  from  the  time  of  such 
service,  so  as  to  be  *  constructive  notice '  to  all  the  people 


1  Allen  V.  Manclaville,  2G  Miss.  397; 
Butler  V.  Tomlinson,  38  Barb.  G41  ; 
Edwards  v.  Banksrnith,  35  Geo.  213; 
Herrington  u.  Herrington,  27  Mo. 
5G0;  Lyle  v.  Bradford,  7  Mour.  115; 

200 


Haughwout  V.  Murphy,  22  N.  J.  Eq. 
515;  Powell  v.  Wright,  7  Beav.  4-14. 

2  Anon,  1  Vcrn.  318  ;  Sugdeu  Ven- 
dors, 1045. 

•'  Kellogg  u.  Faucher,  23  Wis.  21. 


Chap.  X.]  COMMENCEMENT.  §195 

of  the  State  of  its  pendency.     No  record  is  kept  of  the  issu- 
ing of  (he  summons,  and  it  is  not  required  to  be  filed.     It 
may  be  issued  by  any  one  of  several  thousand  lawyers  in 
the  State,  or  by  any  one  of  several  hundred  thousand  per- 
sons in  the  State  competent  to  be  plaintiffs  in  a  suit,  and  it 
might  not  be  possible  for  a  stranger  to  the  suit,  by  any  de- 
gree of  diligence,  to  learn  that  it  had  been  issued  or  served; 
and  if  he  did  perchance  learn  of  it,  it  would  give  him  no 
notice  whatever  of  the  subject  matter  of  the  litigation.     If, 
therefore,  the  mere  service  of  a  summons  should  be  Us  pen- 
dens, so  as  to  bind  strangers,  it  would  introduce  great  un- 
certainty and  embarrassment  into  transactions  in  reference 
to  personal  property,  provided  the  rule  of  lis  pendens  were 
extended  as  broadlj  as  claimed  for  the  plaintiffs  in  this  case. 
I  therefore  liold  that  there  is  no  lis  pendens,  so  as  to  give 
constructive  notice  to  strangers,  until  a  summons  had  been 
served,  and  a  complaint,  distinctly  stating  the  subject  of 
the  litigation,  and  specifying  the  claim  made,  has  been  filed 
in  the  proper  clerk's  office.     The  rule,  as  thus  stated,  is 
sufficiently  hard  and  unreasonable."^     While  Us  pendens  can 
in  no  case  commence  at  common  law  until  process  is  issued 
and  served,^  a  constructive  service  produces  the  same  effect 
as  a  personal  service.     Whenever  the  service  may  be  made 
by  publication,  the  lis  pendens  is  complete,  upon  the  actual 
publication  of  the  notice  for  defendant  to  appear; '  but  it 
seems  that  there  is  no  lis  pendens  until  the  order  for  publica- 
tion is  fully  executed.*     The  acceptance  of  service  of  sub- 
pena  as  of  a  prior  date,  in  pursuance  of  a  previous  agree- 
ment, will  not  bind  any  lands  conveyed  prior  to  the  time 
when  the  acceptance  of  service  was  in  fact  made.""     Where 
a  defective  subpena  was  served,  and  afterward  the  service 
was  set  aside  and  the  subpena  amended  so  as  to  bear  date 


1  Leitch  V.  Wells,  48  N.  Y.  611.  In 
this  case  it  seems  to  be  assumed  that 
the  earlier  case  of  Hayden  v.  Booklin, 
9  Pai.  513,  was  inconsistent  with  the 
decision  reported  in  1  Vernon.  But 
Chancellor  Walworth  instead  of  doubt- 
ing the  case  in  1  Vern.  cited  it,  and 
also  similar  case  of  Moor  v.  Welsh 
Copper  Co.,  1  Eq.  Ca.  Abr.  39,  with 
apparent  approbation. 


2  Wickliffe  v.  Breckinridge,  1  Bush, 
443  ;  Miller  v.  Sherry,  2  Wall.  237 ; 
Waring  v.  Waring,  7  Abb.  P.  472; 
Goodwin  v.  McGehee,  15  Ala.  232. 

2  Chandrou  v.  Magee,  8  Ala.  570  ; 
Bennet's  Lesse  v.  Williams,  5  Ohio, 
461;  Hayden  v.  Bucklin,  9  Pai.  511. 

*  Clevinger  v.  Hill,  4  Bibb,  498 ; 
Carter  l'.  Miller,  30  Mo.  432. 

5  Miller  v.  Kershaw,  1  Bai.  Eq.  479. 

207 


§^195-197  LAW  OP  JUDGMENTS.  fCliap.  X/ 

the  day  the  service  was  set  aside,  it  was  held  that  lis  pendens 
did  not  begin  until  service  of  the  amended  subpena.* 

g  196.  Must  be  Specific. — In  order  to  bring  the  doc- 
trine of  lis  jiendens  into  eiiect,  it  is  indispensable  that  the 
litigation  should  be  about  some  specific  thing,  which  must 
necessarily  be  affected  by  the.  termination  of  the  suit.  It 
does  not  apply  to  an  action  for  divorce  and  for  alimony  to 
be  paid  out  of  the  husband's  estate,  because  such  a  suit 
does  not  apply  to  any  specified  part  of  the  husband's  estate, 
real  or  personal.^  The  judgment  which  may  be  obtained 
may,  from  the  docketing  thereof,  constitute  a  lien  on  certain 
I)roperty;  but  in  this,  as  well  as  in  all  other  respects,  it  no 
more  constitutes  a  Us  -pendens,  or  a  claim  to  particular  estate, 
than  a  suit  upon  a  promissory  note  or  any  other  sufficient 
cause  of  action. 

§  197.  Property  must  be  Pointed  Out. — It  is  further 
essential  to  the  existence  of  lis  pendens,  that  the  particular 
X3roperty  involved  in  the  suit  ' '  must  be  so  pointed  out  by 
the  proceedings  as  to  warn  the  whole  world  that  they  inter- 
meddle at  their  peril."  Where  a  suit  v/as,  among  other 
things,  to  restrain  a  trustee  from  ' '  selling  any  more  of  the 
trust  negroes,"  it  was  held  not  to  affect  the  purchaser  of  a 
negress,  because  there  was  nothing  calling  attention  to  her 
in  the  bill  as  the  identical  property  in  litigation.^  Hence 
a  general  bill  for  an  account  of  real  or  of  real  and  personal 
estate  does  not  create  such  a  Us  pendens  as  will  affect  a  pur- 
chaser, but  the  rule  is  otherwise  when  it  is  sought  to  charge 
a  particular  estate  with  a  particular  trust.  "^  In  a  recent  case 
it  was  said  that  a  bill  "must  be  so  definite  in  the  descrip- 
tion, that  any  one  reading  it  can  learn  thereby  what  prop- 
erty is  intended  to  be  made  the  subject  of  litigation. "^  But 
as  it  is  also  stated  in  the  same  opinion,  that  it  was  evident 
that  the  pleader  in  the  original  case  did  not  have  in  his 
mind  the  property  now  sought  to  be  affected  by  lis  pendens, 
the  language  of  the  court  is  x^robably  to  be  construed  as 


1  Allen  V.  Case,  13  Wis.  G21. 

2  Briglitman  v.  Brightman,  1  E.  I. 
112;  Hamlin  u.  Beavau,  7  Ohio,  IGl; 
Feigleyr.  Foigley,  7  Md.  5^7. 

208 


«  Lewis  V.  Mew,  1  Strob.  Eq.  180. 
4Sugclen  on  Vendors,  1015. 
s  Miller  V.  Sherry,  2  WalL  237. 


Chap.  X.]  NOTICE  OF  LIS  PENDENS.  §gl97-198 

applicable  only  to  those  cases  in  which  there  is  nothing  to 
put  a  purchaser  upon  inquiry,  and  not  to  the  cases  where 
the  pleadings,  though  sufficient  to  put  a  purchaser  on  his 
guard,  do  not,  in  themselves,  contain  a  particular  designa- 
tion of  the  property  in  controversy.  In  a  case  where,  by 
the  decision  of  Chancellor  Kent,  a  purchaser  was  held  to 
be  bound,  the  property  described  in  the  bill  was  "  divers 
lands  in  Crosby's  manor,"  held  in  trust  for  the  plaintiff  by 
the  defendant  Winter.  The  Chancellor  said:  "It  is  true 
there  might  have  been  'divers'  lands  in  '  Crosby's  manor,' 
held  in  trust  by  Winter,  and  yet  the  lots  sold  to  defendant 
have  been  held  by  him  in  his  own  absolute  right.  But, 
though  this  was  a  possible,  it  was  an  improbable  fact;  and 
if  ever  a  bill  contained  sufficient  matter  to  put  a  party  upon 
inquiry,  the  bill  in  1809  answered  that  purpose.  The  doc- 
trine of  Us  pendens  is  indispensable  to  right  and  justice,  in 
the  cases  and  under  the  limitations  in  which  it  has  been 
applied;  and  according  to  the  observations  of  Lord  Chan- 
cellor Manners,  we  must  not  suffer  the  rule  to  be  frittered 
away  by  exceptions.  Was  it  too  much  to  have  required  of 
a  purchaser  charged  with  notice  of  all  the  facts  in  the  bill, 
to  have  called  upon  Winter  to  discover  the  source  of  his 
title  ?  The  general  rule  is,  that  what  is  sufficient  to  put  the 
party  upon  inquiry,  is  good  notice  in  equity.  The  least 
inquiry  even  of  Winter  himself,  would  have  satisfied  the 
purchaser  that  the  lots  he  purchased  were  parcel  of  the 
trust  lands  mentioned  in  the  bill."^  From  this  decision, 
which  seems  to  be  sustained  by  reason,  it  would  follow  that 
the  description  in  the  bill  need  not,  in  itself,  be  so  specific 
as  to  necessarily  and  beyond  all  possibility  include  a  given 
tract  of  land.  But  that  it  is  ample  for  the  purpose  of  in- 
voking the  rule  of  Us  jyendens,  if  the  land  in  all  probability 
comes  within  the  description,  and  if  prospective  purchasers, 
upon  reading  the  bill,  are  advised  by  it  that  the  land  with 
which  they  propose  to  meddle,  may  be,  and  probably  is,  a 
parcel  of  the  lands  in  litigation. 

§198.     Lis  Pendens  is  Notice  of  every  Fact  contained 
in  the  Pleadings,  which  is  pertinent  to  the  trial  of  the  mat- 

iGreen  v.  Stayter,  1  Johns.  Ch.  39 

(14)  209 


gP98-199  LAW  OF  JUDGMENTS.  [Cliap.  X. 

ter  put  in  issue  by  them ;  and,  in  a  chancery  case,  of  the 
contents  of  exhibits  to  the  bill  which  are  produced  and 
proved."  ^  But  lis  pendens  does  not  affect  any  property  not 
necessarily  bound  by  the  suit.  Thus,  if  money  be  secured 
upon  an  estate,  no  litigation  about  that  money,  but  not 
about  the  estate,  can  affect  a  purchaser  of  the  estate.  ^ 

§  199.     Amendments. — It  is  further  necessary,  in  order 
to  conclude  a  purchaser  by  virtue  of  the  judgment,  that  by 
the  record  in  the  case  at  the  time  of  the  purchase,  the  par- 
ties to  the  suit  and  the  nature  of  the  claim  made  to  the 
property,  should  be  so  stated  that  no  subsequent  amend- 
ment will  be  necessary.  If  any  amendment  is  made.  Us  pen- 
dens as  to  the  matters  and  parties  involved  in  the  amend- 
ment, dates  from  the  time  it  is  made.     The  amending  of  a 
bill  to  show  a  new  equity  creates  a  new  lis  pendens.     Thus, 
where  property  was  sought  to  be  subjected  to  the  payment 
of  plaintiffs  demands  upon   one  ground,  and  that  ground 
becoming  untenable,  the  bill  was  amended  to  show  another 
equity,   upon  which  plaintiff  prevailed  in  the  suit  ;  a  pur- 
chaser preceding  the  amendment  was  held  not  to  be  bound 
by  the  decree .  ^     The  decisions  in  Ohio  have  established 
an  exception  to  this  rule.     A  bill  was  filed  to  subject  lands 
to  the  payment  of  a  judgment  which  was  svibsequently  re- 
versed and  a  new  trial  ordered.     Upon  the  new  trial  the 
plaintiff  again  recovered.     He  then  filed  his  supplemental 
bill,  showing  the  new  judgment,  and  asking  that  the  same 
lands  be  subjected  to  its  payment.     A  question  afterward 
arising  whether  the  lands  were  bound  by  lis  pendens  prior 
to  the  filing  of  the  supplemental  bill,  the  court  said:  "It  is 
assumed,   that   when   the  right  to   recover,   in  the  bill  in 
equity,  was  taken  away  by  the  reversal  of  the  judgment,  the 
suit  ceased  to  be  pending,  so  far  as  to  bind  the  property. 
"We  are  not  satisfied  that  this  position  is  a  sound  one.     No 
such  distinction  is  to  bo  found  in  the  books.     But  the  doc- 
trine seems  plain,  that  by  the  institution  of  a  suit,  the  sub- 
ject of  litigation  is  placed  beyond  the  powers  of  the  parties 


1  Center  v.  P.  &  M.  Bank,  22  Ala. 
743. 

2  Worsley  v.  Earl  of  Scarborough, 
8  Atk.  302, 

210 


3  stone  V.  Connelly,  1  Met.  Ky.  (!5i; 
Jones  V.  Lusk,  2  Met.  Ky.  35G;  Clark- 
son  V.  Morgan,  6  B.  Mour.  441. 


Chap.  X.]        CO-PLAINTIFFS  AND  CO-DEFENDANTS.        §^199-200 

to  it — that  whilst  the  suit  continues  in  court,  it  holds  the 
property  to  respond  to  the  final  judgment  or  decree.     The 
supplemental  bill  was  engrafted  into  the  original  bill  and 
becomes  identified  with  it.     The  whole  was  a  lis  pendens, 
effectually  preventing  an   intermediate  alienation."'      The 
introduction  of  new  parties  is,  as  to  those  parties  and  their 
grantees,  a  new  Us  pendens  to  which  under  a  statute  requir- 
ing the  filing  of  a  notice,  a  new  notice  is  indispensable.-  If 
a  bill  of  review  set  up  matter  not  in  issue  in  the  original 
suit,  then,  all  parties  coming  in  after  the  original  suit,  are 
not  bound  by  the  bill  of  review  unless  made  parties  to  it.^ 
There  can  be  no  doubt  that  the  alienee  of  the  plaintiff  is  as 
much  bound  by  the  judgment  as  the  alienee  of  the  defendant. 
But  it  does  not  seem  to  be  essential  to  the  binding  of  the 
plaintiff's  vendee,  that  at  the  time  of  the  transfer,  the  de- 
fendant should  have  disclosed  his  defense,  or  his  claim  to 
affirmative  relief.  Thus,  a  mortgagor  having  a  power  author- 
izing him  to  sell  the  premises  to  pay  his  debt,  commenced 
a   suit  to  foreclose,  to  which  he  made  A.  and  B.  junior 
mortgagees  parties,  and  subsequently  sold  the  lands  under 
his  power  of  sale  to  C.     After  such  sale,  A.  and  B.  filed 
their  cross-bill.     Upon  these  facts  it  was  decided  that  the 
institution  of  the  suit  created  a  lis  pendens  against  the  plaint- 
iff, and  gave   the  junior   mortgagees  the   right  to  litigate 
their  claims  against  him,  connected  with  the  mortgage;  that 
this    right  could  not  be   divested   by  means    of  any   sub- 
sequent sale  or  transfer,  made  to  a  third  party;  and  that 
plaintiff  could  not  lull  A.  and  B.  into  security  by  tendering 
them  an  opportunity  of  controverting  his  claims,  and  then, 
by  having  recourse  to  his  power  of  sale,  avoid  their  equities. 

§  200.  Co-Plaintiffs  and  Co-Defendants.  — The  doctrine 
of  lis  pendens,  not  being  founded  upon  any  of  the  peculiar 
tenets  of  a  court  of  equity  as  to  implied  or  constructive 
notice;  but  being  a  doctrine  common  to  the  courts,  both  of 

1  Stoddard  v.   Meyers,  8  Ohio,  203,  \  was  neither  <in  extingiiishment  nor  a 

release  of  plaintiff's  rights. 

2  Curtis  u.  Hitchcock,  10  Fai.  399. 

3  Debell  v.  Foxworthy's  Heirs,  9  B. 
Monr.  228. 

211 


affirmed  in  Gibbon  v.  Dougherty,  10 
Ohio,  S.  365,  on  the  ground  that  the 
substantial  object  of  the  suit  was  at 
all  times  the  same;  and  that  reversal 
of  the  judgment  for  an  irregularity 


g^  200-201  LAW  OF  juDGiiEXTS.  [Cbax^.  X. 

law  and  of  equity,  and  resting  "upon  this  foundation — tliat 
it  would  plainly  be  impossible  that  any  action  or  suit  could 
be  brought  to  a  successful  termination,  if  alienation  pendente 
lite  were  permitted  to  prevail" — should  not  be  carried  any 
farther   than   is  necessary   to  answer  the  purposes  which 
called  it  into  being.   The  doctrine  oiUs pendens muiii,  there- 
fore, be  restrained  within  its  proper  sphere,  and  not  so  en- 
larged as  to  produce  results,  not  at  all  essential  to  the  carry- 
ing the  judgment  or  decree  into  complete  effect.     Thus,  if 
in  an  action  by  one  plaintiff  against  two  or  more  defendants, 
it  appear  from  the  pleadings  that  one  of  the  defendants  has 
certain  equities  against  the  others,  but  those  equities  do 
not  in  any  way  affect  the  present  litigation  between  plaintiff 
and  the  defendants,  and  the  rights  of  the  defendants  between 
each  other  are  not  sought  to  be  determined,  no  Us  pendens  can 
be  created,  beyond  the  purposes  of  the  suit,  and  an  alienee 
of  one  of  the  defendants  is  not  charged  with  implied  notice 
of  the  equities  between  the  co-defendants.'      It  would  seem 
to  be  perfectly  clear,   in  the  absence  of  all  authority  upon 
the  subject,  that  there  could  be  no  lis  pendens  between  co- 
plaintiffs  or  co-defendants  in  any  action  not  designed  to 
settle  the  rights  of  such  plaintiffs  or  defendants,  between 
each  other,  no  matter  how  many  facts,  not  material  to  the 
present  controversy,  happened  to  find  their  way  into  the 
record. 

g  201.  Affects  only  Pendente  Lite  Intermeddlers. — The 
lis  pendens  "is  only  constructive  notice  of  the  pendency  of 
the  suit  as  against  persons  who  have  acquired  some  title  to, 
or  interest  in,  the  property  involved  in  the  litigation,"  un- 
der the  parties  to  the  suit,  "  or  some  of  them  pendente  lite."^ 
It  can,  in  no  circumstances,  operate  upon  parties  whose 
rights  were  acquired  anterior  to  the  commencement  of  the 
suit.^  An  exception  to  this  rule  is  sustained  by  a  recent 
case  in  Connecticut,  wherein  it  is  decided  that  a  person 
holding  title  to  real  estate,  by  virtue  of  an  unrecorded  con- 


1  Bellamy  v.  Sabine,  1  De  G.  and 
J.  5GG. 

2  Stuyvosant  v.  Hall,  2  Barb.   Ch. 
151. 

3  Hunt  V.  Ilaveu,   12  Am.  L.  Reg. 

212 


592;  S.  C.  52  N.  H.;  Haughwout  v. 
Murphy,  22  N.  J.  Eq.  5i5;  Ensworth 
V.  Lambert,  4  Johns.  Ch.  GOo;  People 
V.  Connelly,  8  Abb.  Pr.  128;  Chap- 
man V.  West,  17  N.  Y.  125. 


Cliap.  X.]  TENDENTE  LITE  INTEKMEDDLEES.  g201 

veyance,  is  bound  by  a  judgment  against  his  grantor.'     Un- 
less this  single  exception  may  be  maintained,   it  is  uni- 
versally true  that  Us  pendens  applies  only  to  rights  and 
interests  involved  in  the  controversy,  and  acquired  of  a 
party  thereto  after  the  institution  of  the  suit."     One  in  pos- 
session, prior  to  a  suit,  can  not  be  divested  of  such  pos- 
session under  a  judgment  against  his  grantor.     This  rulo 
applies  where  the  possession  is  held  under  an  executory  con- 
tract as  well  as  under  a  completed  purchase  and  payment. '' 
Parties  having  an  interest  in  lands  by  contract  of  purchase 
with  the  legal  holders  of  military  land  warrants,  having 
paid  the  purchase  money,    and   being  in  possession,   are 
necessary  parties  to  a  suit,  instituted  by  the  legal  holders 
of  the  same,  to  compel  an  assignment  of  such  warrants,  and 
all  interest  acquired  under  them  by  entry,  location  and  sur- 
vey.    If  not  made  parties,  they  are  not  prevented  by  the 
doctrine  of  lis  pendens  from  proceeding,  during  the  pend- 
ency of  such  suit,  to  clothe  their  junior  equity  with  the  legal 
title  by  procuring  patents  from  the  United  States.*     In  a 
case  decided  in   New  York  in  1833,   the  defendants  had 
made  contracts  to  purchase,  under  which  they  had  entered 
into  possession  of  the  lands,  and  held  and  improved  the 
same  for  several  years.     Suit  was  then  commenced  against 
their  vendor,  during  the  pendency  of  which,  they,  without 
any  actual  notice,  completed  their  payments  and  procured 
conveyances.     They  were  sought  to  be  bound  by  the  decree 
rendered  against  their  grantor  ;  but  it  was  decided  that  the 
reasons  on  which  the  doctrine  of  lis  pendens  were  founded, 
were  inapplicable  to  the  case ;  that  it  was  unreasonable  to 
compel  the  humble  tenant,  in  possession  of  the  land,  to  ex- 
amine the  files  of  the  courts  every  time  he  wished  to  pay 
an  installment  of  the  purchase  money ;  while  no  hardship 
could  be  occasioned  by  requiring  plaintiff  to  make  parties 


1  Norton  v.  Birge,  35  Conn.  250. 

2  Hopkins  v.  McLaren,  4  Cow.  677; 
Curtis  V.  Hitchcock,  9  Pai.  399.  In 
Hall  V.  Nelson,  23  Barb.  88,  it  was 
held  that  the  effect  of  filing  Us  pen- 
dens under  the  statute  was  entirely 
pronpective.  That  a  purchaser,  prior 
to  filing  of  lis  pendens,  though  his  con- 


veyance was  not  recorded,  could  not 
be  affected  by  the  suit,  the  entire  pur- 
pose of  such  filing  being  to  bind  subse- 
quent  purchasers  and  incumbrances. 

^  Clarkson  v.  Morgan,  G  B.  Monr. 
441. 

*  Gibler  v.  Trimble,  14  Ohio,  323. 

213 


§§201-202  LAW  OF  JUDGMENTS.  [Chap.  X. 

to  his  suit  all  persons  in  the  open  possession  of  the  lands 
to  be  affected  thereby.  ^  As  the  operation  of  the  law  of  lis 
pendens  cannot  extend  to  persons  acquiring  title  under  either 
of  the  parties  anterior  to  the  commencement  of  the  suit,  it 
is,  if  possible,  still  less  applicable  to  persons  whose  title 
was  never  at  any  time  derived  from  cither  of  the  parties. 
Therefore,  whoever  claims  adversely  to  the  parties  in  litiga- 
tion, and  by  title  paramount  to  theirs,  cannot  be  prejudiced 
by  their  suit.- 

§  202.     Diligence. — The  doctrine  of  lis  pendens,  though 
upheld  as  a  necessity,  is,  as  against  a  bona  fide  purchaser 
without  notice,  considered  as  a  hard  rule,  and  not  to  be 
favored.^     On  the  one  hand  it  is  said  that  "courts  gladly 
avail  themselves  of  any  defect  in  the  pleadings  or  proofs  of 
the  plaintiff  to   prevent   its   operation   upon   such  a  pur- 
chaser;"^ while,    on   the   other   hand,  it   is   held  that  the 
benefit  of  Us  pendens  can  only  be  lost  by  unusual  and  un- 
reasonable delay,  and  not  by  ordinary  negligence.^     There 
can  be  no  doubt,  however,  that  to  affect  purchasers,  there 
must  be  a  close  and  continuous  prosecution  of  the  suit;  the 
exercise   of   a   reasonable   diligence   unaccompanied  with 
**  any  gross  slips  or  irregularities  by  which  injury  could  ac- 
crue to  the  rights  of  third  parties."*^     What  constitutes  un- 
reasonable  Vvant   of   diligence,    or   undue  delay,    must  be 
decided  under  the  particular   circumstances  of  each  case. 
No   general  rules  upon   the  subject  have   come  under  my 
observation;  and  perhaps  none  can  be  framed  which  would 
be  of  any  particular  service.     In  Kentucky,  suit  was  com- 
menced to  foreclose  a  mechanic's  lien;  and  became  ready 
for  judgment  by  reason  of  the  defendant's  filing  an  admission 
of  the  allegations  of  the  complaint.     Three  years  later,  no 
decree  being  entered,  the  defendant  mortgaged  the  same 
premises  to  a  party  having  no  knowledge  of  the  lien  or  suit. 


1  Pai-ks  V.  Jacksou,  11  Wend.  442. 

2  Allen  V.  Morris,  34  N.  J.  Law  159; 
Stuyvesant  v.  Hone,  1  Sand.  Ch.  419. 

^naydeu   u.  Bacldin,    9   Pai.    511; 
Sorrell  v.   Carpenter,  2  P.  Wins.  483. 
4Ludlow  V.  Kidd,  3  Ohio,  541. 

214 


oGossom  V.  Donaldson,  18  B.  Monr. 
230. 

G  Preston  v.  Tubbin,  1  Tern.  2S6; 
Clarkson  v.  Morgan,  G  B.  Monr.  441; 
Watson  V.  Wilson,  2  Dana,  4()G;  My- 
rick  t'.  Sclden,  36  Barb.  22;  Edmes- 
ton  V.  Lyde,  1  Pai.  G37. 


Chap.  X.] 


DISMISSAL. 


|§202-204 


The  delay  was  deemed  sufficient  to  relieve  the  purchaser 
from  the  operation  of  Us  ijende)is.^ 

g  203.  Ne-w  Suit,  and  Revivor. — If  a  suit  were  not 
prosecuted  with  effect  as  if,  at  law,  it  were  discontinued  or 
the  plaintiff  suffered  nonsuit;  or  if,  in  chancery,  the  suit 
were  dismissed  for  want  of  prosecution,  or  for  any  other 
cause,  not  on  the  merits;  or  if,  at  law,  or  in  chancery,  any 
suit  abated;  although  in  all  such  cases  a  new  action  could  be 
brought,  it  could  not  affect  a  purchaser  during  the  pen- 
dency of  the  first  suit.^  In  case  of  abatement,  however, 
the  suit  might  be  continued  in  chancery  by  revivor,  or,  at 
law,  in  real  actions  abated  by  death  of  a  party,  by  journies 
accounts,  and  the  purchaser  still  bound  by  the  judgment  or 
decree.^  But  in  all  cases  there  must  be  no  laches  in  re- 
viving the  suit;  for  a  failure  to  revive  in  a  reasonable  time 
results  in*  a  suspension  of  the  Us  pendens.'^  In  Kentucky, 
"  a  reasonable  time  "  is  one  year.^  A  reasonable  excuse  for 
the  delay  complained  of,  is  always  available  to  keep  up  the 
lis  pendens."^ 

§  204.  Dismissal. — During  the  pendency  of  an  action  in 
equity,  for  a  specific  performance,  A.  purchased  the  sub- 
ject matter  in  controversy.  The  bill  was  subsequently  dis- 
missed, without  prejudice,  with  leave  to  proceed  de  novo. 
To  the  subsequent  proceeding  A.  was  made  a  party,  but 
contended  that  his  purchase  was  without  notice  of  the 
plaintiff's  rights.  It  was  decided  that  the  effect  of  the  for- 
mer suit,  as  a  Us  pendens,  was  not  impaired  by  the  dismissal 
of  the  bill,  with  leave  to  proceed  de  novo;  that  by  the  im- 
mediate filing  of  his  bill  de  novo,  the  plaintiff  had  been 
constant  and  continuous  in  his  prosecution  ;  and  that  it 
might  well  be  doubted  whether  A.  would  not  have  been 
affected  by  lis  pendens,  if  his  purchase  had  taken  place  after 


lEbrmau  v.  Kendrick,  1  Met.  Ky. 
146. 

2  Newman  v.  Chapman;  2  Eand.  98; 
"Watson  V.  Wilson,  2  Dana,  408;  Her- 
rington  v.  Herrington,  27  Mo.  5G0. 

''  2  Eand,  98  ;  2  Dana,  408. 

*  Trimbles.  Bootliby,  14  Ohio,  109; 


Shiveley  v.  Jones,  6  B.  Monr.   274; 
Watson  V.  Wilson,  2  Dana,  40l>. 

5  Hull  V.  Deatly's  Admr.,  7  Bush. 
687. 

6  Wickliffe  v.  Breckenridge,  1  Bush, 
443.' 

215 


^§204-205  LAW  OF  JUDGMENTS.  [Chap.  X. 

tlie  dismissal  of  tlie  first  bill,  and  before  the  filing  of  the 
second.'  Cut  in  another  case,  the  doctrine  that  a  purchaser 
pending  a  bill  dismissed  without  prejudice,  is  bound  by  the 
subsequent  bill,  is  expressly  denied.- 

g  205.     Writ  of  Error  and  Bill  of  Review. — According 
to  some  of  the  authorities,  a  purchaser  after  final  decree, 
and  before  writ  of  error  or  bill  of  review  is  prosecuted,  is 
a  idendente  lite  purchaser.     Hence,  a  party  purchasing  land, 
from  a  person  who  had  obtained  a  conveyance  of  the  land, 
from  a  commissioner  appointed  by  the  court  for  that  purpose, 
is  liable  to  have  his  title  divested,  if  the  decree  should  bo 
set  aside  by  bill  of  review,  filed  after  the  purchase;"  and 
this,  although  the  defendants  were  infants,  and  allowed  a 
number  of  years  to  file  their  bill  of  review.^     But  in  relation 
to  writs  of  error,  the  position  has  been  taken  that  "until 
service  of  citation,  a  writ  of  error  is  not  to  be  considered  as 
pending,  so  as  to  affect  strangers  as  lis  pendens.     It  is  con- 
tended that  a  writ  of  error  is  but  the  continuance  of  the 
original  suit,  and  like  a  bill  of  revivor,  or  an  appeal,  rein- 
states the  suit,  and  refers  all  things  and  parties  to  its  first 
commencement.     We  do  not  concede  that  such,  in  all  cases, 
would  be  the  consequence  of  a  bill  of  review  or  of  an  appeal. 
But  in  this  case,  we  think,  the  analogy  does  not  hold  good. 
In  the  obvious  nature  and  character  of  the  proceeding,  a 
writ  of  error  is  a  new  and  original  suit.     Original  process 
issues  in  it,  and  must  be  served,  to  bring  the  adverse  party 
into  court.     The  relative  character  of  the  parties  is  changed; 
new  pleadings  are  made  up,  and  a  final  judgment  upon  it, 
though  it  may  operate  on  another  cause,  is,  nevertheless,  a 
termination  of  the  new  suit  or  process  in  error."     As  the 
result  of  these  views,  it  was  determined  that  when  lands  had 
been  awarded  to  A.  by  the  decree  in  a  chancery  suit,  and 
he  had  been  placed  in  possession  thereof,  his  subsequent 
conveyance  of  the  lands  passed  a  title  not  liable  to  be  di- 


1  Ferrier  v.  Buzick,  6  Iowa,  258; 
Bishop  of  Winchester  v.  Paine,  11 
Vesey,  Jr.  200. 

2  Clarkson  v.  Morgan,  6  B.  Monr. 
441. 

*  Debell  v.  Foxworthy,  9  B.  Monr. 

216 


228;  Clarey  v.  Marshall,  4  Dana,  95; 
Earle  v.  Crouch,  3  Met.  Ivy.  450;  Goro 
V.  Staclqwole,  1  Dow.  31. 

■'  Luillow's  Heirs  ).'.  Kidd's  Ex'r.,  3 
Ohio,  541  ;  Bishop  of  Winchester  v. 
Beavar,  3  Yes.  314. 


Chap.  X.]  TEKMINATION   OF  LIS   PENDENS.  gg205-20o 

vested  by  a  writ  of  error,  unless  the  proceedings  upon  such 
writ  were  commenced,  and  citation  served  on  the  defendant 
in  error  prior  to  his  conveyance.^ 

§  206.    Termination  of  Lis  Pendens. — "There  is  no  such 
doctrine  in  this  court,  that  a  decree  made  here  shall  be  an 
implied  notice  to  a  purchaser,  after  the  cause  is  ended;  but 
it  is  the  pendency  of  the  suit  that  creates  the  notice,  for  as 
it  is  a  transaction  in  a  sovereign  court  of  justice,  it  is  sup- 
posed that  all  people  are  attentive  to  what  passes  there,  and 
it  is  to  prevent  a  greater  mischief  that  would  arise  by  peo- 
ple's purchasing  a  right  under  litigation,  and  then  in  con- 
test; but  where  it  is  only  a  decree  to  account,  and  not  such 
a  one  as  puts  a  conclusion  to  the  matters  in  question,  that 
is  still  such  a  suit  as  does  affect  people  with  notice  of  what 
is  doing.  ^     By  virtue  of  a  statute  of  Indiana,  when  a  decree 
for  the  conveyance  of  land  is  not  complied  with,  it  shall, 
notwithstanding,  be  deemed  and  taken  to  have  the  same 
force  in  all  courts  of  law  and  equity,  as  if  the  conveyance 
had  been  made.     Pending  a  suit  for  specific  performance, 
the  defendant  conveyed  the  property  in  controversy  to  W. 
Afterwards,  a  decree  was   entered  and  a  conveyance  was 
made.     This  conveyance  was  recorded  among  the  records 
of   the   court,    but  not  among  the  records  of  the  county. 
Subsequently  W.  conveyed  to  J.     It  was  decided  that  J. 
obtained  the  title,  because  the  decree  was  not  notice,  and 
the  records  of  the  county  did  not  disclose  any  defect  in  W.'s 
title  ;  that  the  case  could  not  be  distinguished  from  that  of 
judgment  and  sale  at  law,  where  a  purchaser  under  execu- 
tion, who  does  not  put  his  deed  on  record  stands,  in  respect 
to  the  registration  laws,   as  if  he  had  purchased  from  the 
defendant.  ^     But  a  purchaser  from  a  mortgagor,   after  a 
decree  of  foreclosure,  is  liable  to  be  removed  from  posses- 
sion under  a  writ  of  assistance.     "It  cannot  be  objected 
that  the  case  is  no  longer  lis  pendens,  after  decree  and  sale, 
and  a  conveyance  executed,  because  the  Court  of  Chancery 


1  Taylor  v.  Boyd,  3  Ohio,  338;  Lud- 
low V.  Kidd,  3  Ohio,  541;  McCormack 
V.  McClure,  6  Blackf.  466. 

sWorsley  v.  Eaii  of  Scarborough, 


3  Atk.  392  ;  Harvey  v.  Montague,  1 
Vern.  122;  Sug.  Vend.  1047  ;  Ludlow 
u.  Kidd,  3  Ohio,  541. 

3  Eosser  v.  Bingham.  17  Ind.  542. 

217 


§^206-208 


LAW  OF  JUDGMENTS. 


[Cliap.  X. 


is  not  functus  officio,  until  the  decree  is  executed  by  delivery 
of  possession.'" 

§  207.     Where  Realty  is  in  Possession  of  the  Court, 

In  case  real  estate  is  taken  into  possession  by  a  court, 
through  the  appointment  of  a  receiver,  or  by  sequestra- 
tion, it  is  not  to  be  intermeddled  with,  without  leave  of 
the  court.  Any  person  having  a  paramount  claim,  by 
judgment  or  mortgage,  should  appear  in  court  and  obtain 
leave  to  proceed.  The  court  will  direct  a  master  to  inquire 
into  the  circumstances,  or  as  to  the  priority  of  the  lien  ; 
and  will  take  care  that  the  fund  realized  from  the  land  is 
apjilied  accordingly.  The  party  having  a  prior  legal  en- 
cumbrance, and  having  no  notice  of  the  proceeding  in 
equity,  may,  no  doubt,  still  hold  such  encumbrance  after 
the  land  is  sold  at  equity,  and  might,  after  the  land  had 
been  removed  from  the  possession  of  the  Court  of  Chancery, 
pursue  his  legal  remedy;  but  if,  while  the  land  is  in  custody 
of  equity,  he  take  out  execution  and  sell,  the  purchaser  will 
take  no  title  as  against  the  chancery  sale.^ 

§  208.  Involuntary  Transfers. — A  distinction  no  doubt 
exists  as  to  the  effect  of  voluntary  transfers  pendente  lite, 
and  those  compulsory  transfers  made  by  operation  of  law, 
in  which,  as  in  involuntary  proceedings  in  bankruptcy,  the 
property  of  a  party  is  transferred  to  an  assignee  for  the 
benefit  of  creditors.  Such  assignee  is  not^bound  to  know 
what  suits  are  pending  to  affect  the  property  of  the  assignor; 
and  he  will  not,  in  any  event,  be  bound  by  any  proceeding 
pending  against  his  assignor  at  the  time  of  the  transfer,  un- 
less he  is  made  a  party  thereto.^  But  where  the  proceeding 
is  voluntary,  it  is  instituted  rather  for  the  benefit  of  the 
applicant,  than  for  the  protection  of  his  creditors.  A 
transfer  in  such  a  case  forms  no  exception  to  the  rule  of 
ordinary  transfers  'pendente  lite.  The  assignee  is  bound  by 
the  judgment  whether  he  be  made  a  party  or  not.*  But  a 
purchaser  at  an  execution  sale  is  considered  as  a  voluntary 
purchaser.     He  acquires  no  title  superior  to  that  possessed 


1  Jackson  v.  Warren,  32  111.  331. 
sWiswall  V.  SumxDson,  14  How.  U. 
S.  p.  52. 

218  • 


3  Sedgwick  v.  Cleveland,  7  Pai.  290. 


*  Cleveland 
G13. 


Boerum,  24  N.   Y. 


Chap.  X.]  VENDEE  OP  VEXDEE.  §§208-209 

by  the  judgment  defendant  at  the  moment  of  the  creation 
of  the  judgment  lien.  If,  when  such  lien  attached,  the  title 
for  the  defendant  had  already  been  tied  up  by  the  pendency 
of  some  other  suit,  the  purchaser  at  the  execution  sale  can 
acquire  nothing  which  is  not  also  subject  to  the  hazard  of 
such  oilier  suit.  Such  purchaser  is  bound  by  the  result  of 
pending  litigation;  and  there  is,  therefore,  no  necessity  of 
making  him  a  party  thereto,  i 

§  209.  Vendee  ofVendee. — An  early  case  in  Virginia 
is  understood  as  restricting  the  doctrine  of  lis  pendens  to 
purchases  and  conveyances  from  the  parties  to  the  suit,  and 
as  Laving  no  force  against  a  person  who  obtains  a  transfer 
'pendente  lite,  from  some  person,  who,  though  not  himself 
a  party  to  the  suit,  obtained  his  title  pendente  lite  from  one 
who  was  such  a  party.  ^  This  case,  so  far  as  our  observation 
extends,  has  never  been  affirmed;  but  the  cases  necessarily 
in  direct  conflict  with  it  do  not  seem  to  be  numerous.^ 
The  general  expression  that  lis  pendens  only  affects  pur- 
chasers from  parties  to  the  suit  pendente  lite,  is  of  frequent 
occurrence  in  the  reports.  Upon  examination  of  the  cases 
in  which  such  expressions  are  employed,  they  will  generally, 
if  not  invariably,  be  found  to  be  intended  as  statements  of 
the  rule  applicable  to  transfers  made  prior  to  the  institu- 
tion of  any  suit,  or  to  transfers  p)endente  lite  of  titles  exist- 
ing independent  of  that  in  litigation.  It  would  be  very 
strange  that  if,  after  the  general  application  of  the  doctrine 
of  lis  pendens  had  been  upheld  for  ages  as  absolutely  indis- 
pensable to  the  administration  of  justice,  a  limitation  should 
be  imposed  which  is  necessarily  subversive  of  the  whole 
doctrine.  If  two  or  more  pendente  lite  transfers  are  to  be 
allowed  to  thwart  the  purposes  of  a  suit,  then  the  principles 
of  necessity  and  of  public  policy,  of  which  so  much  has  been 
said,  are  to  be  regarded  as  decidedly  more  important  than 
the  interests  of  &  pendente  lite  purchaser,  but  decidedly  less 
important  than  the  interests  of  his  vendee.  If  the  final 
judgment  in  any  action  in  reference  to  specific  property 
may  be  nullified  by  two  transfers,  instead  of  by  one,  the 

iSteele  v.    Taylor,   1    Minn.  278;  I      sFrencli  v.  Loyal  Co.,  5  Leigh.  627. 
Hart  V.  Marshall,  4  Minn.  296.  |      sNorton  v.  Birge,  35  Conn.  250. 

219 


g §209-212  LAW  OF  JUDGMENTS.  [Chap.  X. 

difficulty  of  the  extra  transfer  is  not  likely  to  furnish  any 
considerable  protection  to  the  judgment. 

g  210.  Confined  to  the  State. — The  general  rule,  that  lis 
pendens  is  notice  to  the  Avliole  world,  has  been  restricted  by 
a  decision  of  the  highest  court  in  Tennessee.  It  was  there 
decided  that  lis  pendens  applies  to  movable  property  only 
while  it  remains  within  the  State  where  the  suit  is  prose- 
cuted; that  if  property  situated  in  some  .other  State  be  re- 
moved into  Tennessee  pendente  lite,  and  there  sold,  a  pur- 
chaser, without  notice,  is  not  bound  by  the  judgment.  The 
reasoning  upon  which  this  decision  was  supported,  was  that 
the  doctrine  of  lis  pendens  rests  upon  the  necessity  of  pre- 
venting any  obstruction  to  the  execution  of  judgments;  that 
the  judgment  of  another  State  can  not  have  process  issued 
upon  it  here,  and,  therefore,  the  reason  of  the  doctrine  is 
not  applicable  to  proceedings  in  other  States.^ 

§  211.  Lien  of  Attorneys. — Where  by  law  the  attorneys 
in  a  cause  have  a  lieu  upon  property  involved  ,iu  litigation, 
for  their  fees,  the  lis  pendens  is  a  general  notice  of  such  lien, 
and  the  client  can  not,  by  a  pendente  lite  transfer,  defeat  the 
claim.  ^ 

g  212.  Statute  Requirements. — The  hardship  to  hona 
fide  purchasers  of  real  estate,  Avithout  notice,  arising  from 
the  law  of  lis  pendens,  has  been  greatly  ameliorated  in  Eng- 
land, and  in  many,  if  not  in  all,  of  the  United  States,  by  stat- 
utes requiring  the  filing  of  notices  of  the  pendency  of  ac- 
tions affecting  real  property.  Thus,  in  England,  by  statute 
2  Yict.  C.  1157,  it  was  enacted  that  no  lis  pendens  shall  bind 
a  purchaser  or  mortgagee,  without  express  notice,  until  a 
memorandum  or  minute  thereof,  containing  the  name  and 
the  usual  or  last  known  place  of  ab^de,  and  the  title,  trade 
or  profession  of  the  person  whose  estate  is  intended  to  be 
aflfected  thereby,  and  the  court  of  equity,  and  the  title  of 
the  cause  or  information,  and  the  day  when  the  bill  or  in- 
formation was  filed,  shall  be  left  with  the  Senior  Master  of 
the  Court  of  Common  Pleas,  who  shall  forthwith  enter  the 


1  Slielton  V.  JohuKon,  4  Suecd,  633. 

220 


^  limit  V.  McClanahau,  1  Heiskell, 
p.  503. 


Chap.  X.]  IN  EJECTMENT.  §§212-213 

same  particulars  in  a  book,  in  alphabetical  order,  by  the 
n  ime  of  the  person  whose  estate  is  to  be  affected.  In  the 
United  States  the  notice  is  not  generall}^  required  to  state 
all  of  the  particulars  specified  in  the  English  statutes,  our 
law -makers  being  satisfied  with  a  notice  showing  the  nature 
of  the  suit,  the  parties  thereto,  the  court  Avhere  pending, 
and  the  property  to  be  affected  thereby  ;  and  the  filing  of 
such  notice  in  the  office  where  the  records  affecting  real 
estate  are  kept,  and  the  indexing  of  the  notice,  alphabeti- 
cally, according  to  the  names  of  the  parties  to  the  suit.  If 
no  notice  is  filed,  pendente  lite  purchasers  are  wholly  un- 
affected by  the  judgment,^  unless  they  have  actual  knowl- 
edge of  the  suit,  in  which  event  they  are  not  protected  by 
the  statute.^ 

§  213.  In  Hjeetment. — Section  twenty-seven  of  the  Cali- 
fornia Practice  Act  required  the  filing  of  notice  of  the  pend- 
ency of  actions  affecting  the  title  to  real  estate.  This  section, 
it  was  held,  did  not  apply  to  actions  of  ejectment,  nor  to 
any  actions  affecting  the  i^ossession  only.  In  such  actions 
the  title  is  not  affected,  but  remains  after  judgment  as  it 
was  before.  Therefore,  the  j^^ndente  lite  vendee  of  either 
of  the  parties  was  held  to  be  bound  by  the  judgment  ren- 
dered against  his  grantor.^  In  New  York,  where  a  judgment 
in  ejectment  has  no  further  or  higher  effect  than  in  Cali- 
fornia, a  differei^t,  and,  it  seems  to  us,  more  rational 
conclusion  w^as  reached.  The  Supreme  Court  in  that 
State,  in  disposing  of  the  question,  said:  "The  effect  given 
by  this  statute  to  the  judgment  recovered  in  an  action  of 
ejectment  clearly  rendered  that  action  one  which  affected  the 
title  of  the  property  in  controversy  in  it.  For  it  bound 
that  title,  not  only  as  to  the  parties  to  the  action,  but  also 
as  to  all  who  derived  title  under  them  from  the  time  of  the 
commencement  of  the  action.  To  that  extent  the  judgment, 
while  it  remained  in  force,  conclusively  settled  the  rights 


1  Richardson  v.  White,  18  Cal.  102; 
Ault  V.  Gassaway,  18  Cal.  205;  Aadie 
V.  Lobero,  36  Cal.  390;  Leitch  v. 
Wells,  48  Barb.  637. 

2  Sampson  v.  Ohleyer,  22  Cal.  200  ; 
Aadie  v.  Lobero,  36  Cal.  390;  Baker 


V.  Pierson,  5  Mich.  456;  Sugden  on 
Vendors,  1013. 

3  Long  V.  Neville,  29  Cal.  131. 

The  statute  has  since  been  changed, 
and  Us  pendens  may  now  be  filed  in 
ejectment  suits. 

221 


g§213-21J:  L.VW  OF  JUDGMENTS.  [Cliap.  X. 

of  the  parties,  and  those  claiming  under  them,  to  the  prop- 
erty in  controversy.  No  judgment  concerning  the  rights 
of  parties  to  real  j)roperty  could  have  any  greater  effect 
than  that  upon  the  title  of  those  aflfected  by  it.  The  action 
was  one  for  that  reason  in  which  a  notice  of  its  pendency 
should  have  been  filed  in  order  to  secure  this  statutory  re- 
sult against  subsequent  purchasers  and  encumbrancers,  not 
otherwise  having  notice  of  the  pendency  of  the  suit  or  the 
recovery  of  the  judgment.'"  But  this  decision  was  reversed 
by  the  Court  of  Appeals,  on  the  ground  that  it  is  difficult 
to  see  how  in  an  action  of  ejectment  a  notice  of  Us  pendens 
can  be  necessary  to  bind  even  purchasers  pendente  lite  by  the 
judgment."'  Proceedings  to  condemn  land  are  of  the  class 
requiring  notice  of  lis  pendens  to  be  filed,  to  af3fect  pendente 
lite  purchasers  without  notice.^ 

§  214.  Filing  Lis  Pendens  before  Complaint. — It  is  no 
objection  to  the  lis  pendens  that  is  was  filed  several  days 
before  the  suit  was  commenced.  The  object  is  to  give 
notice,  and  a  lis  pendens  so  filed,  gives  as  much  notice  as  one 
filed  simultaneously  with  the  complaint.* 


^  Sheridan  v.  Andrews.  3  Lansing, 
129. 

2  Sheridan  v,  Andrews,   49   N.   Y. 
482. 

3  Bensley  v.  Mountain  Laie  Water 
Co.  13Cal.306. 

222 


4  Houghton  V.  Mariner,  7  Wis.  244; 
but  in  New  Jersey  a  Us  pendens  filed  be- 
fore the  bill  has  been  characterized  as  a 
fraud  and  a  nullity.  Walker  v.  Hall's 
Executors,  22  N.  Y.  525. 


Chap.  XI.]  GENERAL  PRINCIPLES.  §215 


CHAPTER  XI. 

MEEGEE, ;  OK  FOEMER  EECOVEEY. 

§  215.  General  Principles. 

§  21G.  Includes  all  Causes  of  Action. 

§  217.  Judgmeut  as  a  New  Debt. 

§  218.  Depends  on  Valid  Judgment. 

§  219.  Judgments  of  uo  Extra-Territorial  Effect. 

§  220.  Foreign  Judgments. 

§  221.  In  Sister  States. 

§  222.  Examples  of  Merger. 

§  223.  Exceptions. 

§224.  NcTger  j^endente  lile. 

§  225.  Of  Civil  Liability  in  Criminal  Prosecution. 

§  226.  Principal  and  Suret}'. 

§  227.  Co-Plaintiffs  and  Co-Defendants. 

§  227a.  Suits  on  Bills  and  Notes. 

§  228.  Warrantor  and  Grantee ;  Garnishee  and  Principal ;  Corporation  and 

Stockholder. 
§  229.  Collateral  Securities. 

§  230.  Foreclosure  of  Security. 

§  231.  Joint  Obligors. 

§  232.  Partners. 

§  233.  Joint  Debtor  Acts. 

§  234.  Exceptions  to  Law  of  Co-Obligors. 

§  235.  Joint  and  Several  Obligors. 

§  236.  Tort-Feasors. 

§  237.  Whether  Recovery  Vests  Title. 

§  238.  Indivisible  Demands,  Ex  Contractu. 

§  239.  Actions  on  Account. 

§  240.  Only  One  Action  on  One  Contract. 

§  241.  Only  One  Action  on  One  Tort. 

§  242.  In  Cases  for  Injury  by  Nuisances. 

§  243.  Several  Torts. 

§  244.  Exception  to  General  Law  of  Merger. 

§  245.  Proceedings  in  Insolvency. 

§  215.  General  Principles. — The  rendition  and  entry  of 
a  judgment  or  decree  establishes,  in  the  most  conclusive 
manner,  and  reduces  to  the  most  authentic  form,  that  which 
had  hitherto  been  unsettled  ;  and  which  had,  in  all  prob- 
ability, depended  for  its  settlement  upon  destructible  and 
uncertain  evidence.  The  cause  of  action  thus  established 
and  permanently  attested,  is  said  to  merge  into  the  judg- 
ment establishing  it,  upon  the  same  principle  that  a  simple 
contract  merges  into  a  specialty.  Courts,  in  order  to  give 
a  proper  and  just  effect  to  a  judgment,  sometimes  look  be- 
hind, to  see  upon  what  it  was  founded,  just  as  they  would, 

223 


g215  LAW  OF  JUDGMENTS.  [Cliai^.  XI. 

in  consh'iiing  a  statute,  seek  to  ascertain  the  occasion  and 
purpose  of  its  enactment.  The  cause  of  action,  though  it 
may  be  examined,  to  aid  in  interpreting  the  judgment,  can 
never  again  become  the  basis  of  a  suit  between  the  same 
parties.  It  has  lost  its  vitality ;  it  has  expended  its  force 
and  effect.  xVll  its  power  to  sustain  rights  and  enforce  lia- 
bilities has  terminated  in  the  judgment  or  decree.'  It  "is 
drowned  in  the  judgment,""  and  must  henceforth  bo  re- 
garded as  fundus  officio. 

The  well  established  principle  of  law,  that  no  further  ac- 
tion can  be  jprosecuted,  between  the  same  parties,  upon  a 
matter  already  ripened  into  judgment,  is  supported  by  a 
variety   of   reasons.     Its  operation   is,    in   many  respects, 
beneficial.     Its  existence  has  been  variously  accounted  for, 
according  to  the  purposes  subserved,  and  the  reasons  in- 
volved in  the  vast  number  of  cases  in  which  it  has  been 
recognized.     The  early  cases  place  the  rule  upon  the  sole 
ground  that  an  inferior  remedy  has  been  changed   to  one 
superior.     Thus,  it  was  said,  if  a  man  brought  debt  upon 
a  bond  and  had  judgment  in  a  court  of  record,  the  contract 
by  specialty,  being  of  a  more  base  nature,  was  changed  into 
a  thing  of  record,  and  no  further  suit  could  be  brought  to 
vex  the  defendant;  but  if  plaintiff  had  his  judgment  in  a 
court  not  of  record,  he  might  bring  another  action,  be- 
cause his  bond  had  not   been  changed  into   a  matter  of 
higher  nature.^     In  later  cases,  in  addition  to  the  mere  as- 
sertion that  the  judgment  is  of  a  higher  nature  than  the 
cause  of  action,  the  allowance  of  a  new  suit  is  shown  to  be 
a  superfluous  and  vexatious  encouragement  to   litigation, 
injurious    to   the    defendant,    and   of    no   benefit   to    the 
plaintiff.'^     The  doctrine  of  merger  is  also  frequently  sup- 
ported, on  the  ground  that  the  cause  of  action  has  become 
a  thing  adjudicated  and  precisely  determined  and  ascer- 
tained, and,   therefore,    upon  principles  of  public  policy, 
not   to   be   again   made  the   subject   of    judicial   inquiry. 
But,  we  imagine,  the  bar  occasioned  by  a  former  recovery 


1  Wayman  v.  Cochrane,  35  111.  152; 
Hogg  V.  Charlton,  25  Penn.  fc>.  200. 

2Biildleson  v.  Whitel,  1  W.  Bla. 
507. 

224 


3  Vincr's  Abr.  Citing,  6  Eep.  44  b. 
and  45  a.  b. 

4  Smith  V.  Nicholl,   5  Bing.  N.  C. 
208;  7  Dowl.  282. 


Chap.  XI.]      INCLUDES  ALL  CAUSES  OF  ACTION.  §§215-216 

has  been  gradually  strengtlienecl  and  extended,  until  it  has 
become  independent  of  the  reasons  generally  assigned  in 
its  support.  We  doubt  whether,  in  a  majority  of  the  United 
States,  two  suits  could  be  prosecuted  to  judgment  on  the 
same  cause  of  action,  against  the  objection  of  the  defendant, 
irrespective  of  the  question  whether  the  first  judgment  was 
of  a  higher  or  lower  nature  than  the  cause  of  action.  If, 
for  instance,  an  action  were  brought  in  a  justice's  court, 
upon  a  judgment  of  the  district  court,  for  a  sum  less  than 
three  hundred  dollars,  and  prosecuted  with  eflect,  the 
judgment  recovered  would  be  of  a  lower  nature  than  the 
one  sued  upon;  it  would  be  no  more  a  thing  adjudicated 
than  the  cause  of  action  was;  and  yet  the  plaintiff  would 
probably  not  be  at  liberty  to  bring  similar  actions  ad  libi- 
ium.  The  new  judgment,  though  inferior  as  an  instrument 
of  evidence  to  the  old  oue,  and  not  attended  by  the  same 
liberal,  jurisdictional  presumptions,  ought,  nevertheless,  to 
entirely  supplant  the  old  one,  because  it  is  the  most  recent 
judicial  determination  of  the  rights  of  the  parties,  and  be- 
cause the  plaintiff  has  voluntarily  elected  to  abandon  his 
former  judgment  to  secure  one  which,  though  in  an  inferior 
court,  is  conclusive  in  favor  of  the  continuance  and  amount 
of  his  claim. 

§  216.  Includes  all  Causes  of  Action. — The  weight  of 
authority  in  the  United  States  shows  that  whatever  may  be 
a  cause  of  action  will,  if  recovered  upon,  merge  into  the 
judgment  or  decree.  A  contract  by  specialty  merges  into  a 
judgment  in  the  same  manner  as  a  simple  contract.^  A  judg- 
ment is  extinguished  when  being  used  as  a  cause  of  action ; 
it  grows,  into  another  judgment."  It  may  even  be  merged 
by  a  statutory  judgment.  Thus,  if  the  law  provides  for  the 
execution  of  a  forthcoming  or  delivery  bond,  which,  when 
forfeited,  shall  have  the  force  and  effect  of  a  judgment  on 
which  execution  may  be  issued,  a  forfeiture  of  such  bond 


iPittsu.  Fugate,  41Mo.  405;  Kiugl      2  chitty  v.     Gleun,    3   Monr.  425; 
V.  Hoare,  13  M.  and  W.  494;  Andrews  j  Whiting  v.  Beebe,  7  Eng.  549. 
V.  Varreli,  4G  N.  H.  17.  j 

(15)  225 


§§21G-217 


LAW  OF  JUDGMENTS. 


[Clliip.    XI. 


discharges  the  judgment  upon  which  it  was  given.'  On  the 
other  hand,  some  American  cases,  proceeding  upon  the 
theory  that  no  merger  can  take  pLace  until  some  higher 
remedy  or  evidence  is  created,  deny  that  one  judgment  can 
merge  into  another  of  equal  degree.^  On  this  ground  a 
motion  to  enter  satisfaction  of  a  judgment  because  it  had 
been  recovered  upon  in  another  action,  was  denied.^  The 
effect  of  this  ruling  would  be  that  the  estate  of  Hie  debtor 
could  be  involved  by  a  multiplicity  of  record  liens,  and  his 
chattels  seized  under  a  great  number  of  executions,  and 
himself  financially  ruined  by  the  expenses  of  divers  pro- 
ceedings, all  based  upon  a  single  and  indivisible  demand. 

§  217.     Judgment  is  a  New  Debt. — Every  judgment  is, 
for  most  purposes,  to  be  regarded  as  a  new  debt.     The  chief 
and  perhaps  the  only  exception,  being  in  cases  where  the 
technical  operation  of  the  doctrine  of  merger  would  pro- 
duce manifest  hardship,  and  even  those  cases  are  by  no 
means   universally   excepted.      This  new   debt   is  not,    in 
general,  affected  by  the  character  of  the  old  one.     Though 
the  cause  of  action  may  have  arisen  from  a  tort,  the  judg- 
ment is  not,  therefore,  any  the  less  a  contract  or  in  the 
nature  of  a  contract.     Hence,  it  may  be  the  foundation  of 
an  action  of  debt,*  or  of  a  set-off,  under  a  statute  permit- 
ting matters  ex  contractu  to  be  set-off.'^     Neither  is  it  in- 
fected by  the  usurious  nature  of  the  cause  of  action.  "^     The 


1  Brown  v.  Clark,  4  How.  Miss.  4; 
B<auk  of  U.  S.  V.  Patton,  5  How.  Miss. 
200;  Wright  v.  Yell,  13  Ark.  503  ; 
Hanna  v.  Guy,  3  Bush,  91;  Cook  v. 
Armstrong,  25  Miss.  63;  Nealo  v. 
Jeter,  25  Ark.  98  ;  Black  v.  Nettle,  25 
Ark.  GOG  ;  Russel  v.  Shule,  25  Ark. 
4G9;  Lipscomb  v.  Grace,  2G  Ark.  234. 
But  a  different  rule  prevails  in  Ala- 
bama; see  Patton  v.  Hamner,  33  Ala. 
307.  In  Kentucky,  a  person  having 
pleaded  guilty  to  an  indictment  charg- 
ing him  with  being  a  common  gam- 
bler, was  adjudged  "  to  make  his  fine 
to  the  commonwealth  by  the  payment 
of  fifty  dollars."  For  this  fine  a  ca- 
pias pro  fine  was  awarded  against  him 
which  he  replevied  with  one  W.  as  his 

226 


surety.  At  the  maturity  of  the  re- 
jDlevinbond  execution  issued  thereon, 
and  was  returned  unsatisfied.  After 
this,  a  second  capias  pro  fine  was  is- 
sued, but  it  -was,  on  motion,  quashed 
on  the  ground  that  the  original  judg- 
ment levying  the  fine  had  been  merged 
in  the  replevin  bond.  Commonwealth 
u.  Merrigan,  8  Bush.  132. 

2  Weeks  v.  Pearson,  5  N.  H.  324. 

sMumfordu.  Stoker,  1  Cow.  178: 
Griswoldr.  Hill,  2  Paine,  C.  C.  492; 
Andrews  v.  Smith,  9  Wend.  53. 

*  Johnson  v.  Butler,  2  Iowa,  535. 

'•>  Taylor  v.  Boot,  4  Keyes,  335. 

6 Thatcher  v.  Gammon,  12  ilass. 
208. 


Chap.  XI.]  JUDGMENT  IS  A  NEW  DEBT. 


J217 


assignee  of  a  note  sued  the  maker,  wlio  had  an  offset  to  * 
the  note  consisting  of  a  judgment  against  the  assignor. 
.This  set-off  the  maker  did  not  present  when  sued  u23on  the 
note,  and  judgment  was  therefore  rendered  against  him 
without  taking  the  set-off  into  account.  Suit  was  subse- 
quently brought  in  another  State  upon  this  last  judgment; 
and  in  this  last  action  the  defendant  sought  the  benefit  of 
the  set-off,  which  he  had  before  neglected  to  assert.  The 
court  refused  to  entertain  the  set-oft'  because  ' '  the  note  and 
all  the  equities  existing  between  the  parties  were  merged  in 
the  judgment."^  A  judgment  rendered  in  one  State,  upon 
a  forfeited  recognizance  taken  for  alleged  violation  of  its 
penal  laws,  can  be  made  the  basis  of  an  action  in  another 
State,  though  objected  to  on  the  ground  that  one  State  will 
not  aid  in  enforcing  the  penal  laws  of  another.  -  The  same 
rule  is  applicable  to  actions  upon  judgments  given  for  viola- 
tions of  local  police  regulations,  or  for  any  other  local 
causes  of  action.  ^  In  all  such  cases,  no  inquiry  will  be 
made  in  relation  to  the  facts  preceding  the  judgment,  to 
ascertain  whether  the  original  action  would  have  been  en- 
forced by  the  court  now  called  upon  to  enforce  the  judg- 
ment. A  debt  due  to  the  estate  of  a  deceased  person,  if  , 
sued  upon  and  recovered  by  an  administrator,  is,  in  law,  ' 
the  debt  of  him  who  recovers  it,  and  in  whose  name  ihoJicicii 
judgment  is  rendered.  He  holds  the  legal  title,  subject 
only  to  his  trust  as  administrator.  He  may  sue  upon  the 
judgment  in  his  own  name,  without  describing  himself  as 
administrator;  and  may,  therefore,  pursue  the  judgment 
defendant,  by  action  on  the  judgment,  in  a  different  State 
from  that  in  which  the  letters  of  administration  were  issued,* 
and  there  can  scarcely  be  a  doubt  that  a  judgment  rendered 
in  favor  of  an  administrator  so  merges  the  debt  that  it 
may  be  treated  as  his  personal  effects  so  far  as  to  authorize 


1  Ault  V.  Zehering,  38  Ind.  433. 

2  Spencer  v.  Brockway,  1  Hamm, 
259. 

3  State  of  Incl.  v.  Helmer,  21  Iowa, 
370;  Healey  v.  Koot,  11  Pick.  390.  A 
judgment  by  consent  has  been  said  to 
have  the  same  effect  as  any  other,  be- 
cause ' '  the  consent  was  merged  in  the 


judgment."     Holmes  v,    Guion,  44 
Mo.  IGS. 

4Bonafour  v.  Walker,  2  Term  E. 
12G  ;  Biddle  v.  Wilkins,  1  Pet.  G86; 
Tallmadge  v.  Chappel,  16  Mass.  71 ;' 
Hall  V.  Harrison,  21  Mo.  227;  Allen 
x\  Lyman,  27  Verm.  20  ;  Nelson  v. 
Bagby,  25  Tex.  Supp.  305. 
227 


§^217-219  LAW  OF  JUDGMENTS.  [Chap.  XI. 

liim  to  maintain  suit  tlicreon  in  a  foreign  country,  without 
there  taking  out  letters  of  administration.^ 

g  218.  Depends  on  Valid  Judgment. — Merger  depends 
for  its  existence  and  continuance  upon  a  valid  judgment. 
Therefore,  if  such  a  mistake  is  made  in  the  name  of  the 
parties  as  to  render  the  judgment  ineffective,  the  cause  of 
action  does  not  merge,  and  a  subsequent  suit  may  be  brought 
thereon."  If,  in  support  of  a  plea  of  jiidgment  recovered, 
the  defendant  introduce  the  proceedings  or  record  of  a 
court,  from  which  it  appears  •that  the  plaintiff  had  taken  a 
judgment  which  is  coram  non  jiidice,  such  judgment  will  be 
as  unavailing,  as  a  defense  for  the  defendant,  as  it  Avould  be 
as  a  cause  of  action  for  the  plaintiff. '  In  all  such  cases  it 
is  obvious  that  the  judgment  produced  is,  in  fact,  no  final 
determination  of  the  rights  of  the  parties,  and  that  no  ob- 
stacle has  intervened  to  prevent  them  from  seeking  such 
determination.  Though  the  judgment  was  valid  at  its  en- 
tr}-,  it  may  be  reversed  or  set  aside.  In  such  cases  the 
merger  ceases.^  If  plaintiff  recover  judgment  against  one 
of  several  joint  obligors,  and  it  is  reversed,  he  may  proceed 
against  all  of  them  in  a  new  action.^ 

g  219.  Judgment  of  No  Extra-Territorial  Eiiect.  — A 
judgment,  valid  in  the  jurisdiction  wliore  it  was  rendered, 
may  have  no  extra-territorial  effect.  If  so,  the  operation 
of  the  merger  extends  no  farther  than  the  other  incidents 
growing  out  of  the  adjudication.''  In  the  case  of  Sivift  v. 
Stark,  2  Oregon,  p.  97,  the  court  thought  that  a  judgment 
rendered  under  a  statute  of  one  of  the  States,  providing  for 
the  entry  of  judgment  against  two  or  more  joint  debtors, 
upon  service  of  summons  on  but  one,  merged  the  cause  of 
action  against  the  one  not  served,  though,  as  to  him,  it  was 
admitted  to  constitute  only  a  prima  facie  evidence  of  in- 


1  Vanquelinu.  Bonard,  15  C.  B.  (N. 
S.),  341;  S.  C.  33  L.  J.  (N.  S.)  C.  P. 
78;  S.  C.  12  W.  K.  128. 

2  Wixon  V.  Stephens,  17  Mich.  518. 
^  Briscoe  f.  Stephens,  9  Moore,  413; 

Mico  I.'.  Morris,  3  Lev.  234;  Adney  v. 
Vernon,  3  Lev.  243. 

*  Goodrich  l^.  Bodurtha,  6  Gray,  323. 

228 


•'">  Maghee  v.  Collins,  27  lud.  83. 

6  Middlesex  Bank  v.  Butman,  27 
Maine,  19  ;  McVicker  v.  Beedy,  31 
Maine,  314;  Raugeley  i-.  Webster,  11 
N.H.  299;  Campbell  v.  Steele,  11  Pa. 
S.  39G;  Bennett  v.  Cad^\ell,  70  Pa.  S. 
253. 


Chap.  XI.]  FOREIGN  JUDGMENTS.  g §219-220 

debtedness.  But  this  portion  of  the  opinion  of  the  court 
was  not  necessary  to  the  determination  of  the  case.  It 
does  not  seem  to  be  the  result  of  any  .careful  examination 
of  principles  or  adjudged  cases  ;  and  it  is  opposed  by  very 
high  authority.^  In  Michigan,  such  a  judgment  creates  no 
personal  liability  against  the  unsummoned  defendant.  Nei- 
ther is  it  a  merger  of  the  cause  of  action.  The  conclu- 
sion of  the  court  was  sustained  by  the  propositions :  Fi^-st, 
that  neither  the  analogies  of  the  common  law,  nor  the 
reasons  on  wdiich  the  rule  is  based,  apply  to  proceedings 
under  such  a  statute.  Second,  that,  by  commencing  an  ac- 
tion against  all  the  obligors,  the  plaintiff  evinced  an  inten- 
tion to  pursue  them  jointly.  Third,  that  the  judgment, 
though  joint  in  form,  was  eifectual  against  but  one.  Fourth, 
that  by  the  statute  the  unsummoned  defendants  could  be 
brought  in,  and  made  personally  liable,  after  the  judgment, 
while  at  common  law  their  liability  would  have  been  ex- 
tinguished.'^ 

§  220.  Foreign  Judgments. — A  foreign  judgment  is  re- 
ceived with  different  degrees  of  regard  in  different  States, 
and  among  different  nations.  Wherever  it  is  enforced  as  a 
final  adjudication  between  the  parties,  it  ought  also  to  be  a 
bar  to  another  suit.  In  Louisiana,  a  statute  giving  to  for- 
eign judgments  the  same  force  with  those  of  the  sister 
States,  was  decided  to  inhibit  any  further  proceedings  in 
the  original  cause  of  action.^  In  England,  a  foreign  judg- 
ment is,  in  most  respects,  carried  into  effect  to  the  same 
extent,  wdiich,  under  the  provisions  of  our  Constitution  and 
•  the  laws  of  Congress,  a  judgment  rendered  in  one  of  these 
United  States  would  be  enforced  in  another.  But  it  is, 
nevertheless,  not  regarded  as  a  matter  of  record,  nor  as  be- 
ing of  a  higher  nature  that  the  original  cause  of  action. 
Hence,  it  does  not  debar  plaintiff  of  the  remedy  which 
every  subject  has  of  bringing  his  action,  and  he  has  his 
option,  either  to  resort  to  his  original  ground  of  action  or 
to  bring  assumpsit  on  the  judgment.* 


^  D'Arcy  v.  Ketclium,  11  How.  U. 
S.  165. 

sBonnesteel  v.  Todd,  9  Mich.  321. 
^  Jones  V.  Jamisou,  15  La.  An.  35. 


*  Bank  of  Australasia  v.  Harding,  9 
C.  B.  661  ;  Eobertson  v.  Struth,  5  Q. 

B.  911  ;  Smith  v.  Nicholls,  5  Biug.  N. 

C.  208  ;  7  Dowl.  282  ;  Hall  v.  Odber, 

229 


g221  LAW   OF  JUDGMENTS.  [Cliap.    XI. 

§  221.     In  Sister  States. — A  judgment  in  any  o£  the  State 
or  Federal  courts,  upon  valid  personal  service,  being  re- 
garded as  a  debt  of  record,  and  as  entitled  to  full  faith  and 
credit,  is  a  merger  in  every  part  of  the  United  States,  in 
the  same  manner  as  in  the  State  where  it  was  rendered.^    If 
actions  are  simultaneously  pending,  upon  the  same  cause  of 
action,  in  different  States,  a  judgment  in  either  will  bar  the 
further  prosecution  of  the  other.'     This  rule  is  inflexible, 
and  yields  to  no  circumstance  of  hardship  or  inconvenience. 
Its  application  is  not  averted  by  the  pendency  of  an  appeal,' 
nor  by  the  fact  that  the  defendant  has  property  in  the  State 
where  the  action  is  still  pending,  but  none  in  the  State 
where  judgment  has  been  given.*     We  have  already  stated 
that  a  judgment  having  in  other  respects  no  effect  beyond 
the  State  where  it  was  rendered,  is  also  beyond  that  State, 
no  merger  of  the  original  cause  of   action.  ^     But  if  the 
judgment  be  against  one  having  his  domicil  in  the  State 
where  it  was  rendered,  it  will,  according  to  the  weight  of 
the  authorities,  be  given  the  same  effect  elsewhere,  as  would 
be  accorded  to  it  in  the  jurisdiction  where  it  was  created. 
Hence,  though  it  be  based  upon  constructive  service  of  pro- 
cess, and  infected  with  irregularities  in  the  proceedings  by 
which  it  was  procured,  and  be,  on  that  account,  voidable  in 
the  State  where  it  was  entered  ;  still,  as  it  is  binding  on  the 
parties  until  avoided  by  some  appropriate  proceeding,  it 
Avill,  in  the  absence  of  such  proceeding,  be  regarded  even 
in  other  States  as  a  merger  of  the  original  cause  of  action. « 
But  no  judgment  is  to  be  given  any  greater  effect  elsewhere 
than  it  had  in  the  jmisdiction  in  which  it  originated.     The 
consequence  of  a  judgment,  in  respect  to  its  effect  as  a 
merger  of  the  original  demand,  being  dependent  upon  the 


1  Barnes  v.  Gibbs,  2  Vroom.  317  ; 
Ault  V.  Zehering,  38  Ind.  429. 

2  McGilvrey  &  Co.  v.  Avery,  30 
Verm.  538  ;  Kogers  v.,  Odell,  39  N.  II. 
452. 

3  Bank  of  N.  A.  v.  Wheeler,  28 
Conn.  433. 


4  Child  V.  Powder  Works,  45  N.  H. 
547. 

5  See  sec.  219. 

6  Henderson  u.  Stamford,  103  Mass. 
504. 


11  East,  18;  Thilips  ij.  Hunter,  2  H.j  Frazicr  ?;.  Moore,  11  Tex.  755;  Wood 
Bla.  402  ;  Lyman  v.  Brown,  2  Curtis,   u.  Gamble,  11  Cush.  8. 
559  ;  Bonestell  v.  Todd,  9  Mich.  375  ;l 

230 


Chap.  XI.]  EXCEPTIONS.  ""^"^1221-223 

law  of  tlie  land,  a  modification  or  repeal  of  the  law  of  the 
land  will  modify  or  avert  the  incident  of  merger.  Thus,  if 
a  statute,  as  in  Missouri  and  Maryland,  provide  that  a  joint 
contract  shall  be  construed  as  joint  and  several,  the  merger 
of  such  a  contract  by  a  recovery  thereon,  must  bo  treated 
as  though  it  had  arisen  out  of  a  joint  and  several,  and  not 
out  of  a  joint  contract.  ^ 

§  222.  Instances  of  Merger. — Where  a  statute  provided 
for  the  presentation  and  establishing  of  claims  against 
estates,  before  the  County  Court,  it  was  held  that  a  claim  so 
established  merged  into  the  judgment  establishing  it,  and 
would  no  longer  draw  interest  as  a  claim."  If,  in  proceed- 
ings to  condemn  land,  a  mortgagee  is  awarded  the  amount 
secured  by  his  mortgage,  the  indebtedness  is  merged  into 
the  judgment  of  condemnation,  and  he  can  maintain  no 
further  proceeding  to  obtain  his  debt,  except  upon  the 
award. ^  A  statute,  in  Ohio,  provided  that  a  mortgagee 
might  prosecute  a  scire  facias  and  obtain  a  judgment  for  his 
debt,  with  execution  against  the  mortgaged  j)remises  only. 
After  the  mortgagee  proceeded  under  this  statute  his  debt 
was  merged,  so  that  he  could  have  no  further  action  upon 
it.  4 

§  223.  Exceptions. — In  order,  however,  to  create  a 
merger,  the  plaintiff  must  have  had  an  opportunity  to  re- 
cover his  entire  demand.  A  plea  of  judgment  recovered 
will  not  be  supported,  unless  it  appears  that  the  precise 
thing  in  controversy  in  the  second  suit  could  have  been  re- 
covered in  the  first.  Thus,  if  plaintiff,  proceeding  in  a 
Court  of  Admiralty,  obtain  a  judgment  of  condemnation 
against  a  vessel  for  a  collision,  and  have  her  sold,  he  is  not 
precluded  from  proceeding  to  recover  such  further  damages 
as  he  may  have  suffered  from  the  collision,  in  excess  of  the 
value  of  the  vessel  condemned;  because  he  could  not  have 
recovered  this  excess  in  the  proceeding  against  the  vessel.  ^ 


1  Suydam  v.  Barber,  18  N.  Y.  468  ; 
Thomas  v.  Moliler,  25  Md.  36. 

2  Mitchell  u.  Mayo,  16  111.  83. 

3  Shepherd  v.  Mayor  of  N.  Y.,  13 
How.  P.  286. 


^  Eeedy  v.  Burgert,  1  Hamm.  157. 
5  Nelson  v.  Crouch,  15  C.  B.  N.  S. 
99. 


231 


§§223-226  LAW  OF  judgments.  [Chap,  XT. 

It  lias  also  been  decided  that  a  judgment  obtained  against  a 
steamboat  is  not  a  bar,  until  satisfied,  to  an  action  against 
the  owners  upon  the  same  liabilit}',  on  the  ground  that  the 
remedy  against  the  boat  is  cumulative.  ^  The  courts  in  Michi- 
gan refused  to  apply  the  law  of  merger  to  a  case  where,  though 
no  legal  impediment  existed  to  a  full  and  adequate  recovery 
in  the  first  suit,  such  recovery  Avas  prevented  by  the  fact 
that  the  defendant,  being  the  agent  of  the  plaintiff,  had, 
until  subsequent  to  the  rendition  of  the  first  judgment 
against  him,  fraudulently  concealed  from  plaintiff  the  ex- 
istence of  certain  items  of  indebtedness,  which,  had  they 
not  been  so  concealed,  would  have  been  included  in  the 
former  suit.^ 

§224.  Pendente  Lite. — No  demand  included  in  the 
plaintiff's  complaint,  or  in  the  defendant's  set-off,  or 
counter-claim,  can  be  allowed,  if  at  any  time  before  its 
allowance  it  has  been  taken  into  account  in  forming  a 
judgment  in  another  action  between  the  same  parties.^ 

§  225.  Criminal  Prosecution. — It  was  once  thought  that 
a  criminal  prosecution,  ending  in  a  conviction,  merged  the 
civil  liability  ;  that  a  conviction  under  an  indictment  for 
larceny  barred  a  civil  action  for  the  value  of  the  goods 
taken.  But  as  the  causes  of  action  and  the  relief  sought  in 
two  suits  were  of  an  entirely  different  nature,  and  could  not 
be  nnited  in  the  same  proceeding,  and  as  the  moving  par- 
ties in  the  two  cases  were  not  in  privity  with  each  other,  the 
absurdity  of  the  rule  became  apparent,  and  produced  its 
abandonment/ 

§  226.  Principal  and  Surety. — In  Vermont,  a  judgment 
against  the  principal  and  the  surety  merges  not  only  the 
cause  of  action,  but,  as  betAveen  the  plaintiff  and  the  de- 
fendants, the  relation  of  principal  and  surety;  so  that,  at 
law,  the  surety  can  not  avoid  the  judgment  by  proving  that 
since  its  entry  some  favor  or  preference  has  been  given  the 


1  Toby  V.  Brown,  G  Eng.  308. 

2  Johnson  v.  Provincial  Ins.  Co.,  12 
Mich.  216. 

5  Andrews  v.  Varrell,  4G  N.  H.  17; 

232 


McGihTey  v.  Avery,   30  Verm.  538 ; 
Bank  of  North  America  v.  Wheeler, 
28  Conn.  433. 
^  Hilliard  on  Torts,  vol.  1,  p.  59-GO. 


Chap.  XI.]  SUITS  ON  NOTES  AND  BILLS.  g^226-227a 

principal,  suiScient,  if  given  before  the  judgment,  to  relieve 
the  surety  from  further  responsibility.^  But  the  preponder- 
ance of  the  authorities  is  decidedly  against  the  Vermont 
cases,  and  in  favor  of  the  rule  that  the  judgment  creditor  is 
still  bound  to  give  no  preference  to  the  principal  debtor, 
and  to  do  no  act  by  which  the  liability  of  the  surety  can  be 
increased.  And  that  those  acts  which  are  sufficient  to  dis- 
charge the  surety  before  judgment,  will  entitle  him  to  a  re- 
lease afterward,  and  will  constitute  a  complete  defense  to 
an  action  at  law  on  the  judgment.^ 

3  227.  Co-Plaintiffs  or  Defendants. — The  merger  of  the 
cause  of  action  has  no  effect  upon  the  liabilities  of  the  co- 
plaintiffs  or  the  co-defendants,  between  each  other.  Those 
liabilities  are  not  in  issue  in  the  case,  and  therefore  are  not 
affected  by  the  final  determination  of  the  action.  In  extin- 
guishing a  demand,  a  judgment  has  no  greater  effect  than 
mere  payment.  It  leaves  the  liability  of  other  parties  to 
the  defendant  unaffected.  A  recovery  upon  a  note  against 
the  maker  and  indorsers,  does  not  so  merge  the  note  as  to 
prevent  the  indorsers  from  paying  the  judgment,  receiving 
the  note,  and  maintaining  action  on  it  against  the  maker,  ^ 
So  a  judgment  against  co-defendants  creates  no  liability 
between  them,  if  none  before  existed.  Thus,  tort  feasors, 
where  the  injury  committed  is  maluin  in  se,  have  no  right  of 
contribution  between  each  other.  Hence,  a  judgment  re- 
covered against  them  for  such  tort,  and  satisfied  by  one  of 
their  number,  is  wholly  incompetent  to  establish  a  claim 
against  the  others.* 


"o*- 


§  227^.  Suits  on  Notes  and  Bills. — The  recovery  upon 
a  promissory  note,  though  a  merger  of  the  cause  of  action  as 
between  the  parties  to  the  suit,  is  not  necessarily  a  complete 
merger  of  all  other  causes  of  action  which  may  arise  out  of 
the  note.      Thus,  the  fact  that  an  indorsee  has  recovered 


1  Marshall  v.  Aiken,  25  Verm.  332  ; 
Dunham  v.  Douner,  31  Verm.  249. 

2  Kice  I'.  Morton,  19  Mo.  2G3;  Com- 
monwealth V.  Miller's  Adm.  8  S.  &  II. 
458;  La  Fargo  v.  Ilerter,  11  Barb.  159; 
Commonwealth  v.  Haas,  16  S.  &  R. 


252;  Baird  v.  Eice,  1  Call.  18;  Carpen- 
ter V.  King,  9  Met.  511. 

^  Kelsey  v.  Bradbury,  21  Barb.  531; 
Corey  v.  White,  3  Barb.  12. 

J  Percy  u.  Clary,  32  Md.  245. 

233 


§§227a-228  law  of  judgments.  [Cliap.  XI. 

judgment  against  an  acceptor,  docs  not  prevent  a  drawer 
who  lias  taken  up  the  note  from  recovering  another  judg- 
ment against  the  same  acceptor.'  So  it  is  no  defense  to  an 
action  by  an  indorsee  against  the  maker  of  a  note,  (hat  a 
prior  indorsee,  while  the  holder,  and  before  the  plaintiff 
took  it,  recovered  judgment  against  defendant  and  the 
payee. ^  But  if  judgment  be  recovered  against  one  of  the 
joint  makers,  this  is  a  discharge  of  all  the  other  makers 
from  all  suits  by  the  same  plaintiff  and  all  persons  in  priv- 
ity with  him.^ 

§  228.     Judgments  against  Warrantors,  Garnishees,  and 
Stock  Companies. — Judgment  against  the  original  warrantor 
in  favor  of  the  last  grantee,  with  satisfaction,  will  bar  any 
action  by  the  intermediate  grantees.'     In  this  case  it  is  evi- 
dent that  the  demand,  which  consists  of  the  contract  of  war- 
ranty and  the  breach  thereof,  has  passed  to  the  last  grantee, 
and  is  drowned  in  the  judgment.     Taking  judgment  against 
a  garnishee  does  not  merge  the  demand  against  the  princi- 
pal.    Judgments  may  be  recovered  against  both,  and  pro- 
ceeded upon  until  one  is  satisfied.'"'     Judgment  against  a 
joint  stock  company  merges  the  original  liability.     Eedress 
against  the  stockholders  must,  in  New  York,  be  procured 
by  an  action  against  them  on  the  judgment.^    A  different 
opinion  is  stated  by  the  court  in  Young  v.  Rosenbaum,  39 
Cal.  64G.     C.  J.  Ehodes  there  sa^'s  that  the  liability  of  the 
stockholders  is  not  merged,  extinguished  nor  suspended  by 
a  judgment  against  the  corporation.     The  remarks  of  the 
court,  both  in  the  New  York  and  the  California  case,  so  far 
as  applicable  to  this  subject,  are  mere  dida,  arising  from 
the  consideration  of  hypothetical  facts,  and  not  of  the  issues 
before  the  court.     It  is  a  little  remarkable  that  the  premises 
assumed  by  each  court  were  identical,  while  the  results  at- 
tained Avere  diametrical.      Both  judges  assumed  that  the 
liability  of  the  stockholder  was  that  of  a  principal  debtor, 


1  Macdonald  v.  Bovingtou,  4  T.  K. 
825. 

2  McLennan  v.  McMonies,  23  Up- 
per Canada  Q.  B.  115;  Tarleton  v. 
AlUiuson,  2  Ad.  &  El.  32. 

3  Barnett  v.  Juday,  38  Ind,  8G;  Hal- 

234 


lowell  V.  McDonell,  8  Upper  Canada 
C.  P.  21. 
*  Brady  v.  Spruck,  27  111.  481. 

5  Price  V.  Iliggins,  1  I^itt.  273. 

6  Whitehead  v.  Alien,  28  Barb.  661. 


Chap.  XI.]  COLLATERAL   SECLTJTIES,  §228-229 

and  not  that  of  a  surety.  But  one  court  treated  the  case  as 
one  in  which  plaintiff  had  two  distinct  causes  of  action  (one 
against  the  corporation  and  one  against  its  stockholders), 
either  of  which  could  be  prosecuted  to  judgment  without 
affecting  the  other ;  while  in  the  other  court  the  liability 
was  considered  like  that  of  a  partnership,  in  which  a  recov- 
ery against  the  firm  makes  each  partner  responsible  under 
the  judgment,  and  releases  him  from  the  original  debt. 

§  229.  Collateral  Securities. — The  prosecution  to  judg- 
ment of  any  chose  in  action,  given  as  collateral  security, 
in  no  wise  merges  or  discharges  the  original  debt.  As  the 
debt  continued  in  full  force,  independent  of  the  security, 
so  it  remains  unaffected  by  the  judgment  Avhich  is  the  same 
security  in  another  and  higher  form.^  No  other  cause  of 
action  than  the  one  sued  upon  can  merge  in  the  judgment. 
Hence  the  successful  prosecution  of  an  action  on  the  orig- 
inal debt  will  not  impair  the  right  to  proceed  upon  the 
security.'^  The  cases  of  Benson  v.  Paine,  9  Abb.  Pr.,  28 
and  17  How.,  Pr.  407  ;  Peters  v.  Sanford,  1  Den.,  224,  and 
AverJiill  v.  Louchs,  6  Barb.  19,  present  singular  examples  of 
violations  of  the  unquestioned  principle  of  law,  that  the 
merger  of  a  security  does  not  merge  the  original  debt.  In 
the  two  cases  first  named,  the  plaintiff  had  taken  the  note 
of  one  partner  to  secure  a  debt  due  from  the  firm.  In  the 
last  named  case  the  plaintiff  took  a  bond  and  warrant  of  at- 
torney from  one  of  the  partners,  for  a  similar  purpose. 
Judgments  ha\ing  been  entered  in  the  several  cases,  on  the 
notes  and  also  on  the  bond,  the  question  arose,  whether  an 
action  could  be  maintained  against  the  resj)ective  co-part- 
nerships- on  the  original  indebtedness.  In  each  case  it  was 
held  that  the  recovery  against  one  partner  on  the  collateral 
security  given  by  him,  had  merged  the  demand  against  the 
co-partnership.  But  from  the  opinion  of  the  court  in  each 
case,  the  conclusion  is  irresistible  that  no  questic^  was 


1  Drake  v.  Mitchell,  3  East.  251  ; 
Watson  V.  Owens,  1  Eicli.  Ill  ;  Davis 
V.  Anable,  2  Hill,  339  ;  Bank  of  Che- 
nango V.  Hyde,  4  Cow.  567;  Fairchild 
V.  Holly,  10  Conn.  475 ;  Butler  v. 
MHler,  5  Den.  159  ;  U.  S.  v.  Hoyt,  1 


Bltehf.  326  ;  Day  v.  Leal,  14  Johns. 
404 ;  Chipman  v.  Martin,  13  Johns. 
240. 

2  Fisher  v.  Fisher,  98  Mass.  303  ; 
Butler  V.  Miller,  1  N.  Y.  496. 

235 


§§229-231  L.UV  OF  JUDGMENTS.  [Cliap.   XI. 

supposed  to  be  involved,  except  the  effect  of  tlie  entry  of  a 
judgment  against  a  partner,  for  a  partnership  debt.  In 
each  of  the  three  cases,  however,  a  judgment  upon  a  col- 
lateral security  did,  in  fact,  bar  an  action  for  the  original 
debt  ;  but  neither  case  is  authority  to  overturn  the  proposi- 
tion, that  the  merging  of  a  mere  security  never  involves  the 
real  indebtedness.  Wo  cannot  but  wonder  that  three  cases 
involving  the  same  question  should  be  determined  in  the 
same  State,  without  the  attention  of  either  court  being 
directed  to  a  rule  of  law  so  familiar  to  the  profession  and 
so  decisive  of  the  matters  under  consideration. 

§  230.  Foreclosure  of  Security. — The  foreclosing  of  a 
mortgage,  held  as  security,  in  a  suit  in  the  name  of  the-as- 
signor  and  the  assignee,  does  not  change  the  relation  of  tho 
plaintiffs  to  each  other.  If  the  assignee  purchase  the 
mortgaged  premises  at  a  sale  under  the  decree,  he  will 
hold  them  subject  to  redemption  on  the  same  terms,  as  the 
mortgage  could  have  been  redeemed  upon  prior  to  the 
suit.' 

§  231.  Joint  Obligors. — Whenever  two  or  more  persons 
are  jointly  liable,  so  that  if  an  action  be  commenced  against 
any  less  than  the  whole  number,  the  non-joinder  of  the 
others  will  sustain  a  plea  in  abatement,  a  judgment  against 
any  of  those  so  jointly  bound,  merges  the  entire  cause  of 
action.  The  cause  of  action  being  joint,  the  plaintiff  can 
not  be  allowed  to  sever  it  against  the  objection  of  any  of 
the  defendants.  By  taking  judgment  against  one,  he 
merges  the  cause  of  action  as  to  that  one,  and  puts  it  out  of 
his  power  to  maintain  any  further  suit  either  against  the 
others  severally,  or  against  all  combined.  A  different  con- 
clusion was  announced  by  Chief  Justice  Marshall,  in  the 
case  of  Sheehj  v.  Mandeville,  6  Cranch.  253.  He  there 
held  that  a  judgment  against  one  of  the  makers  of  a  joint, 
note,  did  not  merge  it  as  to  the  other  maker.  Notwith- 
standing the  respect  everywhere  entertained  for  the  opinions 
of  this  great  jurist,  this  particular  one  was  rarely  assented 
to  in  the  State  courts,  was  doubted  and  criticised  in  England, 

1  Hoyt  V.  Marteuse,  10  N.  Y.  231. 

23G 


Chap.  XI.]  PARTNERS.  gg231-232 

and,  after  many  years,  was  clii-ectly  overruled  in  the  same 
court  in  whicli  it  was  pronounced.  ^  The  cases  sustaining 
it  are  few,  ~  while  those  which  oppose  it  are  very  numer- 
ous.^ 

§  232.  Partners. — It  is  well  settled  that  the  liability  of 
partners  for  a  debt  due  from  the  firm  is  such  that  a  several 
action  can  not  be  maintained  against  each  partner,  if  a 
plea  in  abatement  be  interposed.  In  case  no  such  plea  is 
made,  and  a  judgment  is  obtained  against  one  or  more  of 
the  partners,  no  further  suit  can  be  main-tained.^  This 
rule  in  relation  to  partnerships  yields  to  no  hardship. 
Thus,  where  plaintiff  procured  one  member  to  confess  judg- 
ment for  the  firm,  the  confessing  member  was  held  to  be 
bound  by  the  judgment,  whilst  his  co-partners  were  neither 
bound  by  the  judgment,  nor  liable  to  any  other  action  upon 
the  same  liability.  ^  And  a  judgment  against  the  known 
members  of  a  partnership,  discharges  the  secret  or  dormant 
members.  The  fact  that  plaintiff  was  not  informed  as  to 
all  the  persons  bound,  does  not  prevent  the  liability  from 
merging  in  the  recovery. "  This  rule  has  been  violated  in 
South  Carolina.  Where  plaintiff  sold  goods  to  A.  and 
took  his  note  for  the  purchase  money,  a  judgment  recovered 
upon  the  note,  was  held  not  to  prevent  a  further  action 
from  being  sustained  against  B.,  who  had,  since  the  judg- 
ment, been  discovered  to  be  A. 's  co-partner.''     This  case 


1  Mason  v.  Elclred,  6  Wall.  231. 

2 Treasurers    v.   Bates,    2    Bailey, 
362. 

3 Ward  V.  Johnson,  13  Mass.  148; 
Thomas  v.  Rumsey,  G  John,  26;  Suy- 
damt;.  Barber,  18  N.  Y.  468;  Brady 
V.  Eeynolds,  13  Cal.  31;  Wann  v. 
McNulty,  2  Gilm.  359;  Smith  v. 
Black,  9  S.  and  E.  142;  Philson  r. 
Bamfield,  1  Brev.  202;  Benson  v. 
Paine,  17  How.  P.  407;  Henderson  v. 
Beeves,  6  Bltchf.  101;  King  v.  Hoare, 
2  D.  and  L.  382;  Maghee  v.  Collins, 
27  Ind.  83;  Kiugsley  v.  Davis,  104 
Mass.  178;  Boot  v.  Dill,  38  Ind.  169; 
Harris  v.  Dunn,  18  UiDper  Canada,  Q. 
B. 352. 


4Nichols  V.  Bin-ton,  5  Bush.  320; 
Candee  v.  Clark,  2  Mich.  255;  Averill 
V.  Loucks,  5  Nev.  93;  Mason  v.  El- 
dred,  6  Wall.  231;  Lydam  v.  Cannon, 

1  Hous.  431;  Woodwortht'.  Spaffords, 

2  McL.  18;  Sloo  v.  Lea,  18  Ohio,  279; 
U.  S.  t;.  Trofton,  3  Story,  646;  Crosby 
V.  Jeroloman,  37  Ind.  276. 

5  North  &  Scott  V.  Mudge,  13  Iowa, 
496. 

6  Scott  V.  Colmesnil,  7  J.  J.  M.  416; 
Smith  V.  Black,  9  S.  and  E.  142; 
Moale  V.  Hollius,  11  G.  and  J.  11. 

TWatson  V.  Owens,  1  Eich.  Ill; 
Union  Bank  v.  Hodges,  11  Eich.  480. 


237 


gg232-23i  LAW  or  judgments.  [Chap.  XI. 

is,  however,  entirely  unsupported  by  authority,  not  likely 
to  be  anywhere  sustained. 

g  233.     Joint  Debtor  Acts. — In  some  of  the  States  pro- 
visions have  been  incorporated  into  the  Codes  of  Civil  Pro- 
cedure, authorizing  a  judgment  to  be  rendered  in  any  action 
ag.ainst  several  persons  jointly  liable,  without  service  on  all 
of  the  defendants,  such  judgment  to  be  satisfied  out  of  the 
individual  property  of  the  defendant  served  and  the  joint 
property  of  all  the  defendants.     It  is  further  provided  in 
the  States  of  ^Michigan  and  New  York,  that  "such  judg- 
ment shall  bo  conclusive  evidence  of  the  liabilities  of  the 
defendant  who  was  served  with  process  in  the  suit,  or  who 
appeared  therein;  but  against  every  other  defendant  it  shall 
be  evidence  only  of  the    extent  of  the  plaintiff's  demand 
after  the  liability  of  such  defendant  shall  have  been  estab- 
lished by  other  evide'nce."     This  clause  recognizes  the  con- 
tinuance of  the  liability   of  a  defendant,  not  served  with 
process,  after  judgment  has  been  rendered  against  him  as 
provided  in  the  statute.     Its  effect,  therefore^  is  to  prevent 
the  incident  of  merger  from  attaching  to  the  judgment  and 
operating  as  a  release  of  any  defendant  who,  though  a  party 
to,  was  not  personally  served  in  the  suit.     Such  defendant 
may  be  subsequently  sued,  and    subjected  to  a  personal 
judgment.^ 

§  234.  Exceptions. — If,  in  Indiana,  one  of  the  joint 
promissors  die,  and  judgment  is  afterwards  obtained  against 
the  survivor,  who  is  insolvent,  the  original  debt  will  furnish 
a  claim  liable  to  be  enforced  by  proceedings  against  the 
estate  of  the  deceased. '■  Where  a  joint  promise  is  made  by 
parties  residing  in  different  States,  a  recovery  against  one 
in  the  State  where  he  resides  does  not  bar  an  action  against 
the  other  party  in  the  other  State.''  In  both  of  these  cases 
it  is  evident  that  some  modification  of  the  doctrine  of 
merger  is  indispensable  to  secure  to  plaintiffs  the  full  bene- 


1  Otildey  V.  Aspinwall,  4  Corns.  513; 
Bonestcel  v.  Totlil,  9  Mich.  379  ;  Mas- 
on V.  Eldred,  6  Wall    239. 

2  Weyer  v .  Thoruburgh,  15  Ind.  121; 
Dovol  V.  Halstead,  IG  lud.  2S7.  ■ 

238 


■■'  Dennett  v.  Chick,  2  Greenl.  193  ; 
Rand  v.  Nutter,  5G  Mai.  339  ;  Browu 
V.  Bii-dsall,  29  Barb.  519. 


Chap.  XI.]  TRESPASSERS.  §§234-236 

fit  of  their  contracts.  lu  the  first  case  the  parties  liable 
could  not  be  joined  in  one  action.  The  plaintiff,  therefore, 
showed  no  intention  of  releasing  one  party  by  pursuing  the 
other.  In  the  second  case  no  judgment  could  be  secured 
in  any  State  court,  binding  on  both  promissors.  To  give  to 
a  judgment  against  either  the  effect  of  a  merger  of  the 
cause  of  action  against  both,  would,  therefore,  be  to  require 
plaintiff,  without  any  fault  of  his,  to  abandon  his  remedy 
against  a  part  of  the  co-obligors. 

§  235.  Joint  and  Several  Contractors. — A  judgment 
against  any  less  than  the  entire  number  of  persons  bound 
by  a  several  or  a  joint  and  several  obligation,  does  not 
release  th-3  residue  until  satisfied.^  Joint  and  several  con- 
tracts have  been  considered  as  furnishing  two  distinct 
remedies  :  one  by  a  joint  action  against  all  the  obligors,  the 
other  by  a  several  action  against  each.  The  result  of  this 
is  that  an  action  against  all  on  the  joint  liability,  in  nowise 
affects  an  action  against  each  on  the  several  liability  ;  and  a 
several  judgment  against  each  leaves  untouched  the  right  to 
proceed  jointly  against  all.^  On  the  other  hand,  in  ex  'parte 
Eowlandson,  3  P.  Wms.  405,  Lord  Ch.  J.  Talbot  said:  "At 
law,  when  A.  and  B.  are  bound  jointly  and  severally  to  J. 
S.,  if  J.  S.  sues  A.  and  B.  severally,  he  can  not  sue  them 
jointly;  and,  on  the  contrary,  if  he  sues  them  jointly  he  can 
not  sue  them  severally,  but  the  one  action  may  be  pleaded 
in  abatement  of  the  other."  In  Pennsylvania,  the  plaintiff, 
by  instituting  a  joint  action,  is  presumed  to  elect  to  pro- 
ceed jointly,  and  is  bound  by  such  election.  If,  therefore, 
he  accept  judgment  against  less  than  the  entire  number  sued, 
he  is  not  permitted  to  proceed  against  the  others.^ 

«  

§  236.  Trespassers. — The  liability  of  persons  joining 
with  one  another  in  the  commission  of  a  trespass,  is  joint 
and  several,  and  the  effect  of  a  judgment  recovered  against 


1  Harlan  v.  Berry,  4  G.  Greene,  212; 
McEeady  v.  Eogers,  I  Nebr.  124 ; 
Elliott  I'.  Porter,  5  Dana,  299  ;  Arm- 


sUnited  States  u.  Cusliman,  2  Sum- 
ner, 426;  Charles  u.  Haskins,  11  Iowa, 
329. 


strong  u.  Prewett,  5  Miss.  47G  ;  King  sBeltzboover  i'.  Commonwealth,  1 
V.  Hoare,  13  M.  &  W.  504;  His  v.  Watts,  126;  Williams  v.  McFall,  2  S. 
Davis,  68  N.  C.  233.  I&  R.  280, 

239 


223G 


LAW  OF  JUDGMENTS. 


[Cliai3.  XI. 


tlicm,  in  merging  the  cause  of  action,  is,  in  America,  gov- 
erned by  the  rules  applicable  to  judgments  upon  joint  and 
several  contracts.'  The  early  English  and  American  author- 
ities sustained  an  opposite  conclusion."  In  England,  after 
some  considerable  doubt  had  been  manifested  upon  this 
question,  the  courts  decided  to  follow  the  early  decisions, 
instead  of  concurring  in  the  departure  taken  by  the  Ameri- 
can courts.  "We  entertain,"  said  Willis  J.  in  the  Com- 
mon Pleas,  "the  highest  respect  for  the  American  jurists, 
and  are  always  ready  to  receive  instruction  from  their  de- 
cisions upon  questions  of  general  law.  But  the  question 
whether  a  plaintiff  is  to  be  allowed  to  maintain  a  second 
action  against  one  whom  he  ought  to  have  sued  jointly  with 
another  in  a  former  action,  is  purely  a  one  of  procedure, 
and  on  such  a  question  we  are  bound  by  the  authorities  in 
our  own  courts."^  This  decision  of  the  Common  Pleas  sub- 
sequently coming  on  to  be  reviewed  in  the  Exchequer  Cham- 
ber, was  affirmed  on  the  ground  that  it  was  sustained  by 
principle  as  well  as  by  precedent.  Kelly  C.  B.,  in  the  be- 
ginning of  his  opinion,  in  considering  the  question  upon 
principle,  reasoned  as  follows:  "The  defendant,  by  way  of 
plea,  alleges  that  an  action  w^as  brought  for  the  same  cause 
against  the  other  wrong -doer,  and  a  judgment  obtained 
against  her,  which  remains  in  full  force;  and  the  question 
is,  whether  that  affords  any  defense  to  this  action.  That  a 
judgment  and  execution,  with  satisfaction,  Avould  be  a  de- 
fense, is  not  disputed.  A  long  series  of  authorities  has  so 
laid  down;  but  it  was  doubted  wdiether  judgment  and  execu- 
tion, without  satisfaction,  was  a  bar  also.  It  will  be  right, 
therefore,  to  consider  whether  this  latter  is  not,  upon  prin- 
ciple, a  good  and  valid  defense.     If  it  were  held  not  to  be 


1  Elliott  V.  Porter,  5  Dana,  299; 
Blann  v.  Crocheron,  19  Ala.  647 ; 
Hyde  v.  Noble,  13  N.  H.  494;  Hilliard 
on  Torts,  toI.  2,  p.  310-311;  Elliott  v. 
Hayden,  104  Mass.  180;  Morgan  v. 
Chester,  4  Conn.  387  ;  Matthews  r. 
Menedger,  2  McL.  145  ;  Bloss  v.  Ply- 
male,  3  West  Va.  403. 

zLendall  v.  Pinfold,  1  Leon,  19  ; 
Chitty  PI.  89,  citing  Cro.  Jac.  74,  2  B. 
&  P.  70-71;  1  Saund.  207a;  Broome  v. 

240 


Wootton,  Yelv.  G7;  Warden  v.  Bailey, 
4  Taunt.  83;  King  v.  Hoare,  13  Mees. 
&  W^  494. 

These  cases  ra-c  also  sustained  by 
several  American  decisions  : 

Campbell  v.  Phelps,  1  Pick.  61 ; 
Hunt  V.  Bates,  7  R.  I.  217;  Wilkes  v. 
Jackson,  2  H.  &  M.  355. 

sBrinsmeadu.  Harrison,  L.  B.  7,  C. 
P.  551.  See  also  Sloan  v.  Creasor, 
22  Upper  Canada  Q.  B.  130. 


CLap.  XI.]  TRESPASSERS.  §236 

a  defense,  the  effect  would,  iu  the  first  place,  be  to  en- 
courage any  number  of  vexatious  actions  whenever  there 
happened  to  be  several  joint  wrong-doers.  An  unprinci- 
pled attorney  might  be  found  willing  enough  to  bring  an 
action  against  each  and  every  of  them,  and  so  accumu- 
late a  vast  amount  of  useless  costs,  if  judgment  against 
one  of  them  did  not  operate  as  a  bar  to  proceedings  against 
the  others.  The  mischief  would  not  even  rest  there.  Judg- 
ment having  been  recovered  against  one  or  more  of  the 
wrong -doers,  and  damages  assessed,  if  that  judgment 
afforded  no  defense,  the  plaintiff  might  proceed  to  trial 
against  another  of  them,  and  the  second  jury  might  assess 
a  different  amount  of  damages.  Which  amount  is  the 
plaintiff  to  levy  ?  There  are  other  grounds  upon  which  it 
would  be  extremely  inconvenient  and  unjust  if  a  second 
action  could  be  maintained.  But,  independently  of  the 
mischief  which  would  result  from  holding  the  law  to  be  as 
contended  for,  let  us  see  how  the  authorities  stand.  In  the 
first  place,  there  is  no  authority  whatever— since  the  reigns 
of  the  Henrys  and  the  Edwards,  nothing  approaching  to  an 
authority  has  been  cited — to  show  that  such  a  plea  as  this 
would  not  be  a  good  defense.  In  the  absence,  therefore, 
of  authority  to  the  contrary,  upon  principle,  and  upon  what 
I  conceive  to  be  binding  authority  in  its  favor,  I  come  to 
the  conclusion  that  such  a  plea  as  this  affords  a  good  de- 
fense."^ But,  with  all  due  deference  to  so  high  an  authority, 
it  strikes  us  that,  while  professing  to  discuss  this  question 
upon  principle,  the  Chief  Baron  discussed  it  only  with  refer- 
ence to  considerations  of  hardship  and  inconvenience.  The 
only  way  in  which  it  can  be  discussed  upon  principle  is  to 
demonstrate  that  the  cause  of  action  is  joint  andnot  Joint  and 
several.  This  the  Chief  Baron  did  not  attempt.  If  consid- 
erations of  convenience  are  to  govern  in  determining  the 
application  of  the  law  of  merger,  it  might  be  denied  in 
many  instances  where  the  liability  is  clearly  joint  and  sev- 
eral. By  way  of  illustration,  suppose  that  one  of  the  makers 
of  a  joint  and  several  note,  on  being  sued  thereon  inter- 
poses a  defense  ;  and,  upon  the  trial  of  the  cause,  the  jury 

1  Britismead  v.  Harrisou,  L.  R.  7,  C.  P.  557.    See  also  Sloan  v.  Creasor,  22 
Upper  Canada,  Q.  B.  130. 

241 


g236  LAW  OF  JUDGMENTS.  [Chap.  XI. 

allows  the  defenso,   in  whole   or  in  part.     Another  action 
may  then  bo  brought  against  the  other  promissor,  he  may 
interpose  the  same  defense,   and  support  it  by  the  same 
evidence,  and  yet  the  jury  before  whom  the  second  action 
is   tried,    may   find  a  verdict   entirely  different  from  that 
found   in  the  first    action.      In     such  case,     the   plaintiff 
would,  no  doubt,  take  out  execution  on  the  judgment  which 
happened  to  be  most  favorable  to  his  interests.     Or,  sup- 
pose the  note  to  be  made  by  twenty  joint  and  several  prom- 
issors.     In  that  event,  it  is  possible  that  the  payee  might 
find   an   attorney   willing,    or   even  anxious,    to  prosecute 
twenty  separate  suits,  and  in  each  suit  to  incur  and  tax  the 
largest  amount  of  costs  allowable  by  law.     In  fact,  the  in- 
convenience and  injustice  of  allowing  several  judgments  to 
be  recovered,   upon  any  joint  and  several  liability,  are  as 
likely  to  arise  in  suits  upon  promissory  notes,  as  in  actions 
to  recover  for  trespasses  and  torts  committed  by  two  or 
more  persons.     If  hardship  and  inconvenience  control  the 
judgment  of  the  court  in   the  latter  class  of  actions,  they 
ought  equally  to  control  in  the  former.    A  few  of  the  Amer- 
ican cases,  while  admitting  that  the  successful  prosecution 
of  an  action  against  one  trespasser,  does  not  affect  the  cause  of 
action  against  his  co-trespassers,  decide  that  the  mere  issuing 
of  an  execution  is  a  conclusive  election  to  consider  the  de- 
fendant as   exclusively  responsible.'     But    a   majority  of 
them-   discountenances   this   manifest   absurdity.      If    the 
mere  election  to  pursue  one  trespasser  were  binding  on  the 
plaintiff,   as   a   release  of  all   the   co-trespasses,    it   seems 
difficult  to  understand  why  that  election  is  not  as  obvious 
when  the  suit  has  been  prosecuted  to  final  judgment,  as 
when  the  plaintiff  takes  the  first  step  towards  its  enforce- 
ment.    If,  on  the  other  hand,  such  election   in  no  way  in- 
volves the  several  causes  of  action  against  the  other  tres- 
passers prior  to  the  issuing  of  an  execution,  it  is  difficult  to 
perceive  why  or. how  that  event  necessarily  involves  them. 

1  Blann  v.  Crocheron,  20  Ala.  320  ;  I  Neal,  2  Bai.  406  ;  Lovejoy  v.  Murray, 


White  V.  rhilbrick,  5  Greenl.  H7. 

2  Murray  v.  Lovejoy,  2  Clif.   191  ; 
Sheldon  v.  Kibbc,  3  Conn.  214  ;  San- 
derson V.  Caldwell,  2  Aik.  195  ;  Sharp 
V.  Gray  5  B.  Monr.  4  ;  Jones  v.  Mc- 
'/>  t'^ 


3  Wall.  1  ;  Pago  v.  Freeman,  19  Mo. 
421 ;  Floyd  v.  Broune,  1  Eaw.  125  ; 
Knott  V.  Cunningham,  2  Sneed.  204  ; 
Griffie  v.  McClung,  5  West  Va.  133. 


Chap.  XI.]  VESTING  TITLE.  §§233-237 

How  vain  and  delusive  that  law  must  bo,  which  declares  the 
right  of  an  injured  jDarty  to  x^roceed  severally  against  every 
person  concerned  in  committing  an  injury  ;  which  sustains 
him  until  the  liability  of  every  wrong-doer  is  severally  de- 
termined and  evidenced  by  a  final  judgment ;  and  which, 
after  thus  "  holding  the  word  of  promise  to  his  ear  breaks 
it  to  his  hope,"  by  forbidding  him  to  attempt  the  execution 
of  either  judgment,  upon  penalty  of  releasing  all  the  others. 
Plaintiff  can  have  but  one  satisfaction  for  each  trespass, 
whether  he  has  recovered  several  judgments  or  none.  Such 
satisfaction  abates  all  actions  pending,  and  discharges  all 
judgments  obtained,  against  co-trespassers.^  Pursuing  tres- 
passers, or  any  of  them  severally,  is  a  conclusive  election 
to  consider  the  trespass  as  several,  and  is  a  bar  to  a  joint 
action  subsequently  instituted.^ 

§  237.  Vesting  Title. — "Where,  instead  of  suing  for  the 
mere  damages  occasioned  by  an  act  of  trespass  or  conver- 
sion, the  plaintiff  recovers  judgment  for  the  value  of  the 
property  injured  or  converted,  it  has  frequently  been  held 
that  the  recovery  vests  the  title  to  the  property  in  the  de- 
fendant ;  and  that,  as  it  would  be  unjust  for  the  defendant 
to  acquire  title  to  the  property  taken  or  injured,  while  others 
might  be  made  liable  to  pay  the  entire  value  thereof  in  a 
subsequent  action,  the  plaintiff  could  not  be  allowed  to  pro- 
ceed against  any  person  concerned  in  the  trespass  or  con- 
version and  not  included  in  the  first  action.^  If,  indeed, 
the  mere  rendition  of  a  judgment  transferred  the  title  of 
the  property  in  such  cases  to  defendant,  the  plaintiff's  cause 
of  action  would  of  course  cease  to  be  held  by  him,  and  his 
claim  to  further  proceedings  based  upon  it,  could  not  be 
supported.  But  the  American  courts  have  not  generally 
attributed  this  effect  to  judgments.  The  transfer  of  title, 
in  their  opinion,  does  not  take  place  until  the  judgment  is 
completely  satisfied,  and  the  value  of  the  property  as  ascer- 


1  Mitchell  V.  Libbey,  33  Maine,  74. 

2  Murray  v.  Lovejoy,  2  Cliff,  191  ; 
Smith  0.  liines,  2  Sumner,  348. 

3  Campbell  v.  Phelps,  1  Pick.  61 ; 
Broome  v.  Wootton,  Yelv.  G7  ;  Adam 
V.  Broughtou,  2  Stra.  1078  ;  White  v. 


Philbrick,  5  Greenl.  147 ;  Emery  v. 
Nelson,  9  S.  and  R.  12  ;  Bucklund  v. 
Johnson,  15  C.  B.  145  ;  S.  C.  23  L.  J. 
C.  P.  204.  This  last  case  has  been 
overruled  by  Brinsmead  v.  Harrison, 
L.  R.  GC.P.  588. 

243 


§§230-237  LAW  or  judgments.  [Cliaio.  XT. 

tained  by  the  court,  has  been  paid  to  the  plaintiff.     Until 
such  payment,  therefore,  there  is  no  obstacle  to  prevent  him 
from  seeking  redress  in  the  courts  against  any  one  originally 
liable/     But  when  the  judgment  has  been  paid,  the  title  to 
the  property  is  for  most  purposes  vested  in  the  defendant 
by  relation,  at  the  date  of  the  conversion.     The  plaintiff 
elects  by  his  proceeding  against  the  defendant  to  compel 
the  latter  to  become  a  purchaser  of  the  property  and  to  pay 
its  value  at  the  date  of  the  conversion.     "When  the  plaintiff 
has  succeeded  in  compelling  this  involuntary  purchase  and 
payment,  the  title  thereby  acquired  by  the  defendant  relates 
back  to  the  date  of  the  conversion,  because  that  is  the 
period  at  which  the  plaintiff  has  chosen  to  treat  the  prop- 
erty as  purchased  from  him  by  the  defendant. ■     Therefore, 
if  after  recovering  judgment  for  the  conversion  of  certain 
chattels,  the  plaintiff'  retake  the  same  chattels  into  his  pos- 
session, and  subsequently  to  such  retaking  he  enforce  the 
collection  of  the  judgment,  such  collection  vests  the  prop- 
erty in  the  defendant  as  of  the  date  of  the  original  con- 
version and  entitles  him  to  an  action  against  the  plaintiff 
for  the  retaking.^     But  the  relation   of  title  back  to  the 
period  of  the  conversion  will  not  be  permitted  to  take  effect 
to  the  prejudice  of  innocent  third  persons  so   as  to  make 
them  liable  as  trespassers.* 

§  238.  Indivisible  Demands  Ex-Contractu. — That  a 
single  or  entire  demand  can  not  be  split  so  as  to  constitute 
the  basis  of  more  than  one  suit ;  and  that  the  recovery  upon 
any  part  of  such  demand  merges  the  whole,  is  not  dis- 
puted,^ although  the  plaintiff  may  have  assigned  some  por- 


1  Osterhaut  v.  Boberts,  8  Cow.  43  ; 
Spivcy  V.  Morris,  18  Ala.  254  ;  Smith 
V.  Alexander,  4  Snecd.  482  ;  Sander- 
son V.  Caldwell,  2  Aik.  203  ;  Jones  v. 
McNeil,  2  Bai.  4GG  ;  Morgan  v.  Ches- 
ter, 4  Conn.  387  ;  2  McL.  145  ;  Hyde 
V.  Noble,  13  N.  H,  501  ;  McGee  v. 
Overby,  7  Eng.  164  ;  Sharp  r.  Gray,  5 
B.  Monr.  4  ;  Ilcpbiirn  v.  Sewall,  5  H. 
&  J.  212  ;  Lovcjoy  v.  Murray,  3  Wall. 
1 ;  Elliott  V.  Hayden,  104  Mass.  180  ; 

244 


Smith  V.  Smith,  50  N.  H.  219 ;  Mc- 
Keady  v.  Rogers,  1  Ncl.  127. 

2  Hepburn  v.  Sewcll,  5  Har.  &  J.  211. 

3  Smith  V.  Smith,  51  N.  H.  571. 

4  Bacon  v.  Kimmill,  14  Mich.  201. 

5  Staples  u.  Goodrich,  21  Barb.  317 
Watorbury  v.  Graham,  4  Sanf.  215 
Warren  v.    Comings,   G    Gush.    103 
Smith  V.  Jones,  15  Johns.  229  ;  JIarsh 
V.  Pier,  4  Eawle.  273  ;  Crosby  v.  Jer- 
oloman,  37  Ind.  277. 


Chap.  XI.]  INDIVIDUAL   DEMANDS.  ^238 

tion  thereof  to  a  third  person.  ^     It  is  equally  certain  that 
one  person  may,  at  the  same  time,  hold  several  distinct 
causes  of  action  against  another  ;  and  may  maintain  an  ac- 
tion on  any  of  such  causes,  Avithout  prejudicing  his  right  to 
]3roceed  upon  any  of  the  others."     Great  difficulty  has  been 
experienced  in  determining  what  constitutes  an  entire  or 
single  demand  ;  and  many  irreconcilable  adjudications  have 
been  made  upon  the   subject.     It  may  be  laid  down  as  a 
general  rule,  that  each  separate  agreement  or  transaction 
will  give  rise  to  one  entire  and  independent  cause  of  action, 
and  to  hut  one.     Thus,  if  several  parcels  of  merchandise  be 
sold  at  one  time,  the  transaction  will  constitute  but  one  de- 
mand.^    A  note  payable  in  one  year,  with  interest  payable 
semi-annually,  comprises  two  distinct  contracts  :  one  to  pay 
the  principal  sum  and  the  other  to  pay  the  interest.     A 
judgment,  after  the  principal  is  due,  in  an  action  for  in- 
terest,  does  not  merge  both  contracts.*     F.  discounted  a 
bill  drawn  by  J.  upon  A.,  and  J.  and  A.  agreed  at  the  same 
time  that  in  case  the  bill  was  not  paid  at  maturity,  they 
would  pay  thereon  £20  for  each  month,  and  E.  sued  J.  on 
the  bill,  claiming  no  interest,  and  recovered.     It  was  after- 
wards held  that  the  agreement  to  pay  X20  per  month  in- 
terest was  a  distinct  agreement  upon  which  F.  could  recover 
in   another   action,    for   every   month   until   the   bill    had 
merged  into   the   judgment   obtained   upon  it.-'^      A   note 
sigaed  by  A.  B.  &  Co.,  and  by  A.  B.,  furnishes  two  causes 
of  action:  one  against  A.  B.  and  the  other  against  the  firm. 
Each  cause  of  action  may  be  recovered  upon  severally.  ^ 
Where  the  law  provided  that  the  plaintiff  should  have  judg- 
ment in   certain  cases,  unless  an  affidavit  of  defense  was 
filed,  the  defendant  having  filed  such  affidavit  as  to  part  of 
the  claim,  the  plaintiff  took  judgment  for  the  balance.    The 
court,  thereupon,  held  that  there  could  be  but  one  final 


1  Ingraham  v.  Hall,  11  S.  and  E.  78. 

2  Eobbins  v.  Harrison,  31  Ala.  IGO; 
Kes   V.    Sheriff,   1   B.   and  Ad.  672  ; 


Allen,  28;  Sparliawku.  Wills,  6  Gray, 
1G3. 

5  Florence  v.    Jennings,   2    C.  B. 


Wittick  V.  Traum,  27  Ala.  5G3.  (N.  S.)  i54. 

3  Smith  V.  Jones,  15  Johns.  229.  g  Gilinan  &  Co.  v.  Foote  &  Co.,  22 

4Audover  Sav.   Bank  v.  Adams,  1  Iowa,  500. 

245 


§g238-240 


LAW   OF   JUDGMENTS. 


[Chap.  XI. 


judgment  in  an  action,   and  tliat  plaintiff  was  precluded 
from  proceeding  for  tlio  disputed  portion  of  the  claim,  i 

§  239.  Actions  on  Account. — In  actions  for  goods  sold, 
for  money  loaned  and  received,  or  for  labor  performed,  at 
various  times,  the  whole  sum  due  at  the  commencement 
of  the  suit,  probably  constitutes  but  one  demand.  It  is 
said  to  be  reasonable  for  the  courts  to  presume,  in  such 
cases,  that  an  agreement  existed  in  pursuance  of  which  the 
plaintiff,  for  a  definite  period  of  time,  or  at  the  will  of  both 
parties,  was  to  furnish  goods,  to  loan  money,  or  to  perform 
labor  ;  and  that  the  amount  due  under  the  agreement  should 
constitute  but  one  cause  of  action.  ^  The  amounts  due 
upon  a  book  account  are  generally  regarded  as  constituting 
an  indivisible  demand.^  Some  courts,  however,  consider 
each  separate  charge  as  a  distinct  cause  of  action,  not  to  be 
affected  by  proceedings  for  the  recovery  of  other  charges, 
antecedent  or  subsequent.*  A  contract  to  pay  the  hire  of  a 
horse  and  buggy,  is  so  distinct  from  the  implied  obligation 
to  pay  for  damages  thereto  during  the  period  of  the  hiring, 
that  judgment  for  the  hire  does  not  affect  the  claim  for 
damages.  ^ 

§  240.  Indivisible  Demands. — Where  the  action  is  upon 
a  contract,  it  merges  all  amounts  due  under  or  arising 
out  of  the  contract,  prior  to  the  suit.  They  constitute  a 
single,  indivisible  demand.  Tlie  plaintiff  cannot  be  allowed 
to  split  up  the  various  covenants  or  promises  contained  in 
one  contract,  and  to  recover  upon  each  separately.  He  can 
have  but  one  recovery  upon  one  contract.  ^  If  a  railroad 
company  agree  to  build  a  crossing,  this  can  not  be  distin- 
guished from  a  covenant  to  do  any  other  act.  Upon  a 
breach  of  the  covenant,  by  a  failure  to  erect  the  crossing. 


i  Brazier  v.  Banning,  20  Penn.  S. 
345. 

2  Secor  V.  Stnrgis,  16  N.  Y.  548  ; 
Bunnell  v.  Pinto,  2  Conn.  431;  Pliiu- 
ney  v.  Barnes,  17  Conn.  420. 

3  Avery  v.  Fitcli,  4  Conn.  362  ; 
Lucas  V.  Le  Comto,  42  111.  303  ;  2 
Smith's  Leading  Cases,  G71. 

24G 


4Rexv.  Sheriff,  IB.  and  Ad.  572: 
Mcintosh  V.  Lown,  40  Barb.  550. 

5  Shaw  V.  Beers,  25  Ala.  449. 

6  Goodrich  v.  Yale,  97  Mass.  15; 
O'Beirne  v.  Lloyd,  43  N.  Y.  248; 
Hopf  V.  Myers,  42  Barb.  270;  Warren 
V.  Comings.  G  Cush.  103;  Daltou  v. 
Bentley,  15  111.  420;  Chinn  u.  Hamil- 
ton, Hemps.  438. 


Chap.    XI.]  ■  INDIVIDUAL  DEMANDS.  ^240 

the  covenantor  may  bring  an  action.  The  jndgment  ob- 
tained in  such  action  vill  be  considered  as  a  full  compensa- 
tion for  all  damages  which  have  arisen  or  which  may  arise 
from  the  breach  of  the  covenant;  and  the  plaintiff  can  not 
therefore  recover  for  any  damages  sustained  by  him  subse- 
quently to  the  former  recovery.^  If  a  bond  be  given  to  a 
constable  to  indemnify  him  from  all  damages,  charges, 
trouble  and  expense  that  he  might  be  put  to  by  reason  of  a 
levy  upon  and  sale  of  specified  property,  all  these  items 
constitute  a  single  demand.-  Judgment  for  a  breach  of  a 
covenant  in  a  lease,  is  a  bar  to  an  action  for  any  other 
breach,  previously  committed.^  This  doctrine  though  well 
sustained  is  pronounced  heretical  in  Mcintosh  v.  Lown,  49 
Barb.  650,  where  the  extreme  ground  is  attempted  to  be 
maintained,  that  each  successive  breach  of  any  contract 
constitutes  an  independent  cause  of  action,  so  that  a  plaint- 
iff, after  recovering  for  one  breach  of  a  covenant  in  his 
lease,  is  at  liberty  to  recover  damages  for  any  preceding 
breach.  To  the  same  effect  is  the  opinion  in  the  case  of 
Badger  v.  Titcomh,  15  Pick.  p.  409.  There,  the  defendant, 
being  the  keeper  of  an  office  for  procuring  crews  for  vessels, 
agreed  to  pay  plaintiff  a  specified  sum  for  each  man  shipped. 
The  court  decided  that  the  plaintiff  could  maintain  an  ac- 
tion for  the  breach  of  this  contract,  occurring  antecedent 
to  another  breach  upon  which  judgment  has  been  obtained. 
Of  course,  the  recovery  upon  a  contract  does  not  affect  any 
distinct  cause  of  action  subsequently  accruing.  Thus  an 
endorser,  who,  upon  being  compelled  to  pay  part  of  a  note, 
recovers  the  amount  paid,  from  a  second  endorser,  will, 
when  obliged  to  pay  the  balance,  be  in  condition  to  success- 
fully prosecute  another  action  against  the  second  endorser.* 
Presenting  an  elitire  demand  as  a  defense  to  an  action,  or 
as  a  set-off,  and  its  partial  allowance  merges  the  whole  de- 
mand.    "When  the  set-off,  being  fully  established,  exceeds 


1  Smith  V.  Great  WesternE.  W.  Co, 
6  Upper  Canada,  C.  P.  15G,  citing 
Manning  r.  The  Eastern  Counties  R. 
W.  Co.  17  Mees.  &  W.  237. 

2  Bancroft  v.  Wiuspear,  41  Barb. 
209. 


sBendernagle  v.  Cocks,  19  "Wend. 
207;  Fishr.  Folley,  G  HiU,  54;  Stuy- 
vesaut  V.  Mayor  of  N.  Y.  11  Paige, 
414. 

4  Wright  u  Butler,  6  Wend.  284. 


■'o*- 


247 


gg240-241 


LAW   OF  JUDGMENTS. 


[Chap.  XI. 


the  jDlaintiff's  demand,  the  defendant  can  not  in  a  subse- 
quent action  recover  the  excess.  ^ 

§  241.     Indivisible  Demands,  Ex  Delicto. — The  rule  that 
one  cause  of  action  cannot  bo  split  into  several,  is  as  appli- 
cable to  actions  ex  delicto  as  to  those  ex  contractti.     A  single 
act  of  trespass  or  conversion  can  be  the  foundation  for  but 
one-claim  for  damages.     A  judgment  for  plaintiff  in  replevin 
for  a  portion  of  the  things  taken,  is  a  bar  to  a  subsequent 
action  for  damages  for  the  same  taking,  it  not  being  shown 
that  any  of  the  things  not  recovered  in  the  former  action 
were  concealed  or  so  disposed  of,  that  as  to  them  the  reple- 
vin would  not  lie. "     The  rule  is  without  exception,  that  if 
several  chattels  be  taken  at  the  same  time,  a  recovery  of  any 
of  them,  Avhether  in  trespass  or  in  trover,  merges  the  entire 
demand  arising  out  of  the  taking,  and  no  further  recovery 
can  be  had  in  any  form  of  action.     The  propriety  of  this 
rule  is  manifest.     To  allow  as  many  suits  to  be  prosecuted 
as  there  are  articles  taken  or  detained  by  the  defendant, 
would  be  to  inflict  upon  him  a  penalty  more  serious  than 
any    authorized  by  the  penal  laws,    and   to   obstruct  the 
tribunals  of  justice  with  a  cloud  of  petty  cases,  supported 
by  the  same  facts  and  involving  the  same  legal  principles. 
' '  It  would  be  outrageous  to  allow  a  thousand  actions  for 
taking  a  thousand  barrels  of  flour.  "^     When  a  house  and  a 
shop  were  burned  by  the  same  fire,  through  the  negligence 
of  defendant's  servants,  a  judgment  for  the  damages  occa- 
sioned by  the  burning  of  the  shop,  was  adjudged  to  be  a 
bar  to  a  recovery,  in  a  subsequent  action,  for  the  destruc- 
tion of  the  house.* 

All  the  damages  which  can,  by  any  possibility,  result  from 
a  single  tort,  form  an  indivisible  cause  o|  action.  Every 
cause  of  action,  in  tort,  consists  of  two  parts,  to  wit  :  the 
unlawful  act,  and  all  the  damages  which  can  arise  out  of  it. 
For  damages  alone,  no  action  can  be  permitted.     Hence,  if 


1  Simes  v.  Zane,  24  Penn.  242. 

2 Bennett  v.  Hood,  1  Allen,  47;  Iler- 
riter  v.  Porter,  23  Cal.  3S5. 

sFarrington  v.  Payne,  15  Jolins. 
432;  Bates  r.  Quatllcbone,  2  Nott  & 
McC.   205;  Cracraft  v.    Cochran,    IG 

248 


Iowa,  301 ;  Cunningham  v.  Harris,  5 
Cal.  81;  Veghteu.  Hoagland,  5  Dutch 
125;  Bucldaud  u.  Johnson,  15  C.  B; 
145, 


4  Trash 
331. 


V.  The  Euilroad,  2  Allen, 


Chap.  XI.]  INDIVIDUAL  DEMANDS.  §241 

a  recovery  lias  once  been  liad  for  tlie  unlawful  act,  no  sub- 
sequent suit  can  be  sustained.  There  must  be  a  fresh  act 
as  well  as  a  fresh  damage.^  A  recovery  in  trover  for  the 
conversion  of  slaves,  is  a  bar  to  any  claim  either  for  tres- 
pass in  forcibly  taking  them,  or  in  assumpsit  for  the  value 
of  their  services  during  the  period  of  their  conversion.- 
Judgment  upon  contract,  for  breach  of  agreement  in  not 
discharging  an  execution,  merges  the  claim  for  damages 
occasioned  by  an  arrest  under  the  same  execution.^  The 
fact  that  the  damages  now  sought  to  be  compensated  had 
not  arisen  when  the  former  judgment  was  obtained,  does 
not  form  any  exception  to  the  rule.  Thus,  where  the  de- 
fendant had  made  an  excavation  into  plaintiff's  coal  mine, 
through  which  water  flowed,  and  plaintiff  recovered  damages 
for  making  the  aperture,  and  afterward  brought  another 
action  to  obtain  compensation  for  damages  occasioned  by 
the  flowing  of  water  through  the  opening  into  his  mine,  it 
was  held  that  as  defendant  was  under  no  legal  obligation  to 
close  the  excavation,  no  fresh  act  had  been  done,  and  no 
further  suit  could  be  maintained.''  In  this  case  the  damages 
upon  which  the  second  suit  was  based,  though  accruing 
subsequent  to  the  commencing  of  the  first  suit,  were  the 
natural  and  inevitable  result  of  the  excavation.  The  ab- 
sence of  that  fact,  however,  would  not  have  changed  the 
result.  The  rule  yields  to  no  hardship.  Unforeseen  and 
improbable  injuries  resulting  from  any  act,  are,  equally  with 
existing  and  probable  injuries,  parts  of  an  inseverable  de- 
mand. After  judgment  recovered  for  an  assault  and  battery, 
parts  of  the  plaintiff's  skull  came  out,  and  he  sought  to  re- 
cover for  the  damage  thus  occasioned,  and  it  was  decided 
that  he  could  not,  because  the  defendants  had  not  committed 
any  fresh  wrong. ^  The  principles  of  this  case  were  affirmed 
by  a  majority  of  the  judges  of  the  Supreme  Court  of  Yer- 
mont.^     The  Chief  Justice,  however,  dissented.     He  con- 


1  Hoclsall  V.  Stallebrass,  11  Ad.  & 
El.  301. 

2  Cookv.  Cook,  2Brev.  349;  Thomp- 
son u.  Rogers,  2  Brev.  410;  Yowle  v. 
N.  H.  &  N.  Co.,  107  Mass.  352;  Smith 
V.  G.  W.  E.  W.  Co.,  6  Upper  Ciiutida 
C.  P.  156. 


3  Smith  V.  Way,  9  Allen,  472. 
4Clegg  V.  Dearden,  12  Q.  B.  576. 
5 Falter  v.  Beale,  Salk.  11. 
6 Whitney  v.  Town  of  Clarendon, 
18  Verm.  252. 


249 


§§241-2-i2,  LAW  OF  JUDGMENTS.  [Cliap.  XI. 

tended  tliat  tliere  could  not  have  been  any  recovery  for  tliis 
damage  in  the  first  action,  because  it  had  not  then  arisen  ; 
and  that  the  law  ought  not  to  be  so  construed  as  to  re- 
quire juries  upon  the  trial  of  actions  to  estimate  prospective 
damages.  The  injustice  of  such  a  requirement  is  self- 
evident.  No  case  can  arise  involving  claims  for  serious  in- 
juries to  the  person,  in  which  the  assessment  of  damage,  as 
the  law  now  stands,  can  be  otherwise  than  imperfect  and 
unfaii'.  In  the  majority  of  cases,  defendants  must  pay  for 
damages  Avhich  never  develop;  while  in  the  minority,  the 
most  serious  injuries  must  be  borne  without  compensation. 
A  recovery  in  an  action  for  false  imprisonment  brought 
during  the  imprisonment,  does  not  merge  any  claim  for 
damages  for  the  continuance  of  the  same  imprisonment.  ■■ 
In  an  action  for  malicious  prosecution  the  plaintiff  may, 
in  addition  to  the  damages  occasioned  by  the  unlawful 
arrest  and  detention,  recover  for  injury  to  his  reputation 
by  reason  of  the  false  accusation.  Therefore,  a  judgment 
for  false  imprisonment  is  a  bar  to  an  action  of  slander  for 
the  same  accusation  on  which  the  imprisonment  was  pro- 
cured.- But  such  a  judgment  is  no  bar  if  the  utterances 
complained  of,  though  of  the  same  character  and  purport, 
were  made  at  a  different  time  from  the  accusation  by  means 
of  which  the  false  imprisonment  was  occasioned.  ^ 

§  242.  Cases  of  Nuisance. — In  cases  of  nuisance,  the 
injury  maybe  of  two  kinds:  first,  the  injury  produced  by 
the  act;  and  second,  that  occasioned  by  the  continuing  of 
the  nuisance  produced  by  the  act.  For,  while  a  trespasser 
is  under  no  obligation  to  rebuild  or  replace  what  he  has 
torn  down  or  destro^-ed,  he  who  creates  a  nuisance  is  under 
a  continuing  obligation  to  abate  it.*  Therefore,  only  the 
damage  done  at  the  date  of  the  writ  can  be  compensated  in 
that  suit.  If  that  damage  exposes  the  plaintiff  to  the  ex- 
penditure of  money,  he  may  recover  the  full  amount  which 
he  is  liable  to  expend,  whether  it  has  been  already  paid  out 
or  not.      The   material  inquiry  in   the   second   action    is 


iLeland  v.  Marsh,  IG  Mass.  389. 
2  Carj)euter  v.   Sheldon,   4  Corns. 
579, 

250 


3  Rockwell  V.  Brown,  3G  N.  Y.  207, 

4  Clegg  V.  Deardeu,  12  Q.  B.  576. 


Cliap.  XI.]  CASES  OF  NUISANCE.  §242 

whether  the  damages  on  which  it  is  based  are  attributable 
to  the  original  act,  or  to  the  continuing  of  the  state  of  facts 
produced  bj  that  act.  In  the  latter  case  a  new  cause  has 
arisen,  and  a  new  action  v/ill  lie.  "  There  may,  of  course, 
be  cases  where  it  may  be  difficult  to  draw  the  line,  but 
it  is  apprehended  they  will  not  be  numerous.  Wherever 
the  nuisance  is  of  such  a  character  that  its  continuance  is 
necessarily  an  injury,  and  when  it  is  of  a  permanent  char- 
acter, that  will  continue  without  change  from  any  cause 
except  human  labor,  there  the  damage  is  an  original  damage 
and  may  be  at  once  fully  compensated,  since  the  injured 
person  has  no  means  in  his  power  to  compel  the  individual 
doing  the  wrong  to  apply  the  labor  necessary  to  remove  the 
cause  of  injury,  and  can  only  cause  it  to  be  done,  if 
at  all,  by  the  expenditure  of  his  own  means.  But  where 
the  continuance  of  such  act  is  not  necessarily  injurious, 
and  where  it  is  necessarily  of  a  permanent  character,  but 
may,  or  may  not  be,  injurious,  or  may,  or  may  not  be, 
continued,  there  the  injury,  to  be  compensated  in  a 
suit,  is  only  the  damage  that  has  happened.  Thus  the  in- 
dividual who  manages  the  water  he  uses  for  mills,  so  as  to 
wash  away  the  soil  of  his  neighbor,  is  liable  at  once  for  all 
the  injury  occasioned  by  its  removal,  because  it  is,  in  its 
nature,  a  permanent  injury  ;  but  if  his  works  are  so  con- 
structed, that  upon  the  recurrence  of  a  similar  freshet,  the 
water  will  probably  wash  away  more  of  the  land,  for  this 
there  can  be  no  recovery  until  the  damage  has  actually 
arisen  ;  because  it  is  yet  contingent  whether  any  such 
damage  will  ever  arise.  If  a  person  erects  a  dam  upon  his 
own  land,  which  throws  back  the  water  upon  his  neighbor's 
land,  he  will  be  answerable  for  all  damage  which  he  has 
caused  before  the  date  of  the  writ,  and  ordinarily  for  no 
more,  because  it  is,  as  yet,  contingent  and  uncertain, 
whether  any  further  damage  \vill  be  occasioned  or  not,  be- 
cause such  a  dam  is  not  of  its  own  nature,  and  necessarily, 
injurious  to  the  lands  above,  since  that  depends  more  upon 
the  manner  in  which  the  dam  is  used,  than  upon  its  form. 
But  if  such  a  dam  is,  in  its  nature,  of  a  permanent  charac- 
ter, and  from  its  nature  must  continue  permanently  to  affect 
the  value  of  the  land  flowed,  then  the  entire  injury  is  at  once 

251 


§g2i2-243  LAW  OF  JUDGMENTS.  [Chap.  XI. 

occasioned  by  tlie  wrongful  act,  and  may  be  at  once  recov- 
ered in  damages."  ^  Tlins,  where  in  building  a  canal  a  river 
is  dammed  as  a  feeder  to  the  canal,  and  the  lands  of  an 
adjacent  owner  are  permanently  flooded,  ho  cannot  recover 
each  year  the  damage  occasioned  by  the  non-use  of  the  land 
for  that  year,  but  must  at  one  time  recover  the  damages,  to 
wit,  the  full  value  of  the  land.  A  railroad  must  bo  regarded 
as  permanent  in  its  nature,  and  not  as  intended  to  affect 
some  temporary  purpose,  after  which  it  is  to  be  discon- 
tinued. The  damage  occasioned,  therefore,  to  a  roadway 
and  bridge,  by  the  construction  of  a  railroad  track  over 
them  must  be  estimated  for  a  permanent  appropriation. 
Parties  affected  by  such  appropriation  are  entitled  to  re- 
cover at  once  their  full  damages,  and  if  they  recover  any 
part  they  cannot  further  recover  in  a  subsequent  action.  2 

g  243.  Several  Torts. — But  separate  torts  give  rise  to 
separate  causes  of  action,  and  each  cause  remains  unaffected 
by  a  judgment  for  any  other  tort  subsequent  or  antecedent. 
Thus,  a  sailor  who  has  maintained  an  action  in  a  Court  of 
Admiralty,  for  an  assault  and  battery  committed  on  the 
high  seas  is  not  thereby  precluded  from  obtaining  in  a 
common  law  court  a  judgment  for  an  assault  and  imprison- 
ment on  shore  during  the  same  voyage.  ^  But  where  A. 
took  a  bond,  conditioned  that  B.  should  abstain  from  in- 
juring certain  property,  a  recovery  under  the  bond  was 
held  to  estop  A.  from  obtaining  compensation  for  any  injury 
committed  after  taking  the  bond,  and  before  the  commence- 
ment of  the  first  suit :  that  while  A.  could  have  separately 
recovered  for  each  distinct  injury,  independent  of  the  bond, 
'  yet,  having  elected  to  proceed  under  the  bond,  he  was  bound 
by  that  election ;  and  could  neither  sustain  another  action 
upon  the  bond,  nor  disregard  it  by  proceeding  upon  the 
tort  alone.  *  A  person  having  the  choice  of  two  remedies, 
can  prosecute  but  one  of  them  to  judgment.  A  recovery 
in  assumpsit  on  a  policy  of  insurance  bars  a  subsequent 
action  of  covenant  on  the  same  policy. 


1  Troy  V.  Cheshire  R.  E.  3  Fos. 
83. 

2  Town  of  Troy  v.  Cheshire  E.  E. 
Co.,  3  Foster,  83 

252 


3  Adams  v.  Haffarcl,  20  Pick.  127. 

4  Goodrich  v.  Yale,  97  Mass.  15. 

5  Marine    Ins.    Co.    v.   Young,    1 
Cranch,  310. 


Chap.    XI.]  DOCTRINE   OF   MERGER.  §§244-245 

§  244.  Exceptions  to  General  La^^  of  Merger. — The 
law  of  merger  as  applied  to  jadgmentscloes  not  forbid  all 
inquiry  into  the  nature  of  the  cause  of  action.  Such  in- 
quiry may  bo  prosecuted  for  any  purpose  coiisistent  with 
the  judgment  ;  and  is  frequently  necessary  to  its  interpret- 
ation. The  place  where  a  contract  was  made  may  be  ascer- 
tained in  order  that  the  lex  loci,  which  was  a  part  of  the 
contract,  may  have  its  effect  upon  the  judgment.  If  the 
prevailing  party  was  entitled  to  certain  privileges  or  ex- 
empted from  certain  burdens  under  his  contract,  he  may 
be  entitled  to  the  same  privileges  and  exemptions,  in  many 
cases,  under  his  judgment.  And,  whenever  justice  requires 
it,  judgments  will  generally  be  construed  not  as  a  new  debt, 
but  as  an  old  debt  in  a  new  form.* 

§  245.  Doctrine  of  It'ierger  Mo  ified  in  Proceedings  in 
Bankruptcy. — In  no  class  of  cases  has  the  technical  opera- 
tion of  the  doctrine  of  merger  been  so  frequently  limited 
as  in  those  where  the  effect  of  a  discharge  of  a  debtor  under 
laws  for  the  relief  of  insolvents,  had  to  be  determined.  It 
has  been  uniformly  held  that  whenever  a  cause  of  action, 
existing  at  the  time  of  the  filing  of  the  debtor's  j)etition, 
was  of  such  a  nature  that  the  discharge  would  have  aflected 
it,  any  judgment  recovered  thereon  prior  to  the  decree  of 
discharge  will  be  affected  to  an  equal  extent  ;  and  that 
within  the  meaning  of  those  laws  such  judgments  are  never 
to  be  regarded  as  new  debts,  arising  subsequently  to  the 
filing  of  the  petition.^  A  contract  made  in  a  foreign  country, 
and  merged  into  a  judgment  here,  is  for  the  purpose  of  loro- 
ceedings  under  these  laws  to  be  regarded  like  a  new  obliga- 
tion created  under  and  exclusively  subject  to  our  laws. 
Hence  the  discharge  of  the  defendant,  in  the  foreign 
country,  from  all  his  liabilities,  will  not  affect  the  judg- 
ment.^ But  a  judgment  rendered  in  Massachusetts,  upon 
a  contract  made  in  New  York,  between  citizens  of  the  latter 


1  Evans  v.  Sprigg,  2  Md.  457  ;  Wy- 
man  v.  Mitchell,  1  Cow.  316  ;  Clark 
V.  Bowling,  3  Comst.  216. 

•^Blanford  v.  Foote,  1  Cowp.  ]38  ; 
Imlay  v.  Carpenter,  14  Cal.  173  • 
Johnson    v.   Fitzhugh,   3   Barb.   Ch; 


360  ;  Betts  v.  Bagley ;  12  Pick.  572  ; 
Raymond  v.  Merchant,  3  Cow.  147  ; 
Fox  V.  AVoodbury,  9  Barb.  498  ;  Dres_ 
ser  V.  Brooks,  3  Barb.  429  ;  2  Md.  457. 
'  Green  v.  Sarmiento,  3  Wash.  17. 

253 


§245  LAW  OF  JUDGMENTS.  [Chap.  XI. 

State,  comes  within  the  operation  of  a  discharge  in  insol- 
vency granted  by  the  courts  of  New  York,  while  both 
plaintiff  and  defendant  were  residents  of  that  State.* 

1  Betta  V.  Bagley,  12  Pick.  580. 

254 


Chap.  XII.]     THE  JUDGMENT  AS  AN  ESTOPPEL. 


CHAPTEE  XII. 

THE  JUDGMENT  AS  AN  ESTOPPEL. 

PART  I.— NATURE  AND  EXTENT  OF  JUDGMENT  ESTOPPELS.  . 

§  246.  Definition  of  Estoppel. 

§  247.  Judgment  Estoppel  not  odious. 

§  248.  Decrees. 

§  243.  Oenaral  extent  of  Judgment  Estoppel. 

PART  II.— REQUISITES  TO  JUDGMENT  ESTOPPEL. 

5  250.  Must  be  free  from  fraud  and  collusion. 

§  251.  Must  be  a  final  adjudication. 

S  252.  Identities  demanded. 

§  253.  Identity  of  subject  matter. 

S  254.  Identity  of  Purpose. 

S  255.  Identity  of  Form. 

S  256.  Identity  of  Issues. 

§  257.  F.icts  must  have  been  directly  in  issue. 

§  253.  Can  not  extend  to  collateral  questions,  nor  to  matters  Inferred  only  by 

argument. 
§  250.  Identity  of  Evidence. 
§  260.  Must  arise  from  Judgment  on  the  merits. 
§  261,  Motion  for  nonsuit,  is  waiver  of  trial  on  the  merits, 
§  261a. Estoppel  not  created  by  nonsuit. 
§  262.  Dismissal  by  agreement. 

g  263.  Classification  of  Judgmeuts  not  on  the  merits. 

§  264.  Judgments  of  dismissal  for  -want  of  jurisdiction  and  void  judgments, 
§  265.  Judgments  where  remedy  was  misconceived. 
§  2G6.  Judgment  for  want  of  proper  parties. 
t  267.  Judgments  on  Demurrer. 
§  263.  Judgment  in  suits  prematurely  brought. 
§  269.  Claims  not  admissible  under  the  pleadings. 
§  270.  Decree  of  bill  dismissed. 
§  270a. Bill  dismissed  before  the  hearing. 
§  271.  Does  not  extend  to  immaterial  findings. 

PART  fll.  —  OF  EVIDENCE  TO  ESTABLISH  OR  REBUT  THE  PRE- 
SUMPTION OF  RES  JUDICATA. 

§  272.  "Whether  matter  in  issue  may  be  shown  to  have  not  been  put  in  evidence. 

§  273.  Estoppel  may  be  shown  by  parol. 

§  274.  Parol  evidence  to  rebut  presumption  of  Estoppel. 

§  275.  Record  not  to  be  impugned. 

§  276.  Onus  of  Proof. 

PART  IV.  — MATTERS  WHICH  DEFENDANT  MAY  OR  MAY  NOT 

LITIGATE. 

§  277.  Set-off  nof  presented. 
§  273.  Set-off  not  decided. 
§279.  Set-off  rejected. 

255 


LAW   OF  JUDGMENTS.  [Cbap.  XIT. 

§  280.  Set-off  voluntarily  allowed. 
§  231.  Equitable  defenses. 
§  2S2.  Cross-claims. 

PART  Y.-OF  PLEADING  FORMER  JUDGMENT  AS  AN  ESTOPPEL. 

§  283.  Necessity. 

§  231.  Cousequenco  of  Neglect  to  Plead. 

PART  VI.  —  OF   ACTIONS    TENDING    TO  CONTRADICT  FORMER 

ADJUDICATIONS. 

8  284a.Defense3  and  Causes  of  Action  already  Adjudicated. 

§  285.  Action  for  Payments  not  Credited. 

§  286.  Action  for  Credits  not  Allowed. 

S  287.  Action  for  Money  Paid  to  satisfy  Jiidgments. 

§  288.  Action  for  IMoney  Paid  under  Legal  Process. 

§  289.  Action  for  Obtaining  Juagments  by  Fraud  or  Perjury. 

§  290.  Motions  for  Sajisf action. 

S  291.  Taking  Judgment  for  Sum  Paid,  as  Consideration  fora  Promise. 

S  292.  Exceptional  Cases. 

PART  VII.— JUDGMENTS  IN  VARIOUS  ACTIONS. 

FIRST —IN  ACTIONS   AFFECTING   THE   TITLE   OR   POSSESSION 

OF  REAL  ESTATE. 

§  293.  Distinctions  applicable  to  Keal  Actions. 

§  294.  Common  Kecovery. 

§  295.  Ejectment  at  Common  Law. 

§  29G.  Ejectment  at  Common  Law  on  Confession. 

§  297.  Ejectment  at  Common  Law — Evidence  for  Mesne  Profits. 

§  298.  Ejectment  at  Common  Law — Costs  in. 

§  299.  Ejectment  under  Eecent  Statutes. 

§  300.  Ejectment  under  Recent  Statutes — Pleadings  in. 

§  301.  Kjectiucnt  under  Recent  Statutes — Is.';ues  in. 

•§  302.  Ejectment  under  Recent  Statutes — How  Estoppel  Rebutted. 

g  303.  Foreclosure  Suits. 

§  303a.Judgments  affecting  Right  to  Dower. 

§  304.  Partition. 

§  305.  Partition,  plaintiff  not  in  possession. 

§  306.  Partition  against  persons  not  in  esse. 

§  307.  Partition  against  persons  unknown. 

g  308.  Partition,  final  without  deed. 

§  309.  Quieting  Title. 

§  310.  Trespass  on  Real  Estate  in  other  suits  for  trespass. 

g  311.  In  actions  of  Ejectment. 

SECOND.— JUDGMENTS  IN  PERSONAL  ACTIONS. 

g  312.  Suits  for  Breaches  of  "Warranties. 

§  313.  Divorce. 

§  311.  Alimony. 

g  .115.  Against  Partnership, 

§  316.  Replevin. 

.8  317.  Trespass. 

THIRD.— CRIMINAL  CASES. 

g  318.  Judgments  in.  effect  in  Criminal  Cases, 
g  319.  Judgments  in,  efifect  in  Civil  Cases. 

256 


Cliap.  XII.]  DEFINITION  OF  ESTOPPEL.  g246 

FOUETH.— PEOBATE  PEOCEEDINGS. 
§  319.aDecrees  and  Orders  of  Probate  Coiirts. 

PAET  VIII.— ESTOPPELS  AEISING  FEOM  MOTIONS  AND  SPECIAL 

PEOCEEDINGS. 

§  320.  Awards  of  Arbitrators. 

§  321.  General  Submi  sion  of  demands. 

§  322.  Demands  not  Disputed. 

§  323.  Bills  of  Beview. 

§  324.  ir.ibcas  Corpus. 

§  325.  Motions  and  Special  Proceedings. 

§  326.  Eules  applied  to  Motions. 

§  327.  Proceedings  supplementary  to  Judgment. 

PAET  IX.— MISCELLANEOUS  MATTEKS. 

§  323.  Appeal,  effect  of. 

§  329.  After  acquired  rights. 

§  330.  Defaiilts  and  Admissions. 

§  331.  Defaults  and  Admissions,  English  cases  on. 

§  332.  Latest  Adjudication  prevails  over  Prior  Ones. 

§  333.  Eeversal. 

PAET  I.— NATUEE  AND  EXTENT  OF  JUDGMENT-ESTOPPEL. 

§  246.  Definition  of  Estoppel. — Having  treated  of  the 
parties  whose  relation  to  an  adjudication  is  such  as  to  bind 
them  by  the  facts  which  it  necessarily  affirms,  to  the  same 
extent  that  the  immediate  parties  to  the  record  are  bound, 
we  come  now  to  the  consideration  of  the  question :  What 
facts  does  a  judgment  or  decree  so  establish,  that  neither 
the  parties  nor  their  privies  can  ever  afterward  gainsay 
them  ?  But,  before  undertaking  to  consider,  or  to  answer 
the  question,  we  may,  without  wandering  far  from  our  sub- 
ject, show  that  the  word  estoppel,  in  the  sense  in  which  it 
is  defined  by  Lord  Coke,  is  a  term  not  proper  for  the  desig- 
nation of  that  conclusiveness  which  confessedly  attends 
every  final  determination  of  the  rights  of  the  parties  to 
any  action  or  proceeding.  According  to  that  definition,  an 
estoppel  is  ' '  where  a  man  is  not  permitted  to  wpeak  the 
truth."  "Whatever  is  settled  by  a  judgment,  is  the  result 
of  an  investigation,  conducted  under  the  most  favorable 
rules  that  mankind  has  been  able  to  devise,  for  the  expo- 
sure of  falsehood  and  the  ascertainment  of  truth.  Unless 
the  law  is  much  less  "  than  the  perfection  of  human  wis- 
dom," this  result  can  rarely  be  inconsistent  with  truth. 
In  the  common,  as  in  the  civil  law,  ' '  The  authority  of  res 
jadicata  induces  a  presumption  that  every  thing  contained 
(17)  257 


gg24G-2-17  LAW  OP  JUDGMENTS.  fCliap.  XII. 

in  the  judgment  is  true,  and  this  presumption  being  juris 
et  4le  jure,   excludes   every  proof  to  the  contrary."^     The 
term  estoppel,  as  applied  to  judgments,  should  therefore  be  ' 
defined  as  that  which  prohibits  a  party  from  disputing  the 
truth. 

§  247.  Not  Odious. — The  -word  estoppel,  as  associated 
with  judgments,  has  ceased  to  bo  odious.  It  is  more  than 
freed  from  opprobrious  appellations;  the  vocabulary  of  the 
judges  has  been  well  nigh  exhausted  to  supply  it  with  hon- 
orable and  endearing  titles.  This  will  be  made  evident  by 
quotations  from  a  few  American  and  a  few  English  cases  : 
"The  doctrine  of  estoppel  by  a  former  judgment  between 
the  same  parties,  is  one  of  the  most  beneficial  principles  of 
our  jurisprudence,  and  has  been  less  affected  1\y  legislation 
than  almost  any  other.""  "The  maxim,  that  there  must  be 
an  end  to  litigation,  was  dictated  by  wisdom  and  is  sancti- 
fied by  age."^  That  an  estoppel  is  odious,  is  not  to  be 
applied  to  former  adjudications.  The  prevention  of  re- 
litigation, after  years  have  elapsed,  does  not  necessarily 
shut  out  the  truth.  The  doctrine  of  estoppels  in  judgments, 
instead  of  being  odious,  is  one  of  the  most  conservative 
and  salutary  doctrines  of  the  law.*  "  It  has  been  afiirmed 
that  there  is  no  such  thing  as  an  equitable  estoppel.  But 
the  doctrine  of  election,  which  prevents  a  party  from  claim- 
ing in  repugnant  rights,  and  which  has  been  advantage- 
ously introduced  into  courts  of  equity,  is  manifestly  an 
extension  of  this  principle.  In  courts  of  law  they  are  for 
the  most  part  reconcilable  to  the  purest  morality  ;  and 
when  they  produce  neither  hardship  nor  injustice,  they 
merit  indulgence,  if  not  favor.  The  conclusiveness  of 
judgments  which  conduces  so  essentially  to  peace  and  re- 
pose, has  no  other  foundation."^  "  The  very  object  of  insti- 
tuting courts  of  justice,  is,  that  litigation  should  be  decided, 
and  decided  finally.     That  has  been  felt  by  all  jurists.     It 


iPotluer,  Part  4,  C.  3,  Sec.  3,  Art. 
3,Vol.  1. 

*  Justice  Miller,  in  Aurora  City  v. 
West,  7  Wall.  82. 

s  Carothors,  J.  in  Warwick  v.  Un- 
derwood, 3  Head,  Tenn.  233. 

253 


<  Gray  v.  Pingry,  17  Verm.  419. 

5  Gibson,  J.  in  Martin  tj . Ives,  17 S. 
and  R.  p.  3G4-G.  See  also  Nelson,  J. 
in  Van  Eenssalaer  v.  Kearney,  11 
How.  U.S.  326. 


Chap.  XII.]  RES  JUDICATA.  §§247-248 

is  long  since  a  reason  lias  been  assigned  why  judgments 
should  be-  considered  final,  and  should  not  be  ripped  up 
airain — Ne  Utes  sent  immortales,  dum  litantes  sunt  mortales. 
Human  life  is  not  long  enough  to  allow  of  matters,  once 
disposed  of,  being  brought  under  discussion  again  ;  and  for 
this  reason  it  has  always  been  considered  a  fundamental 
rule,  that,   when  a  matter  has  once  become  res  judicata, 
there  shall  be  an  end  to  the  question."^     The  doctrine  of 
estoppel  is  not  strictly  applicable  to  a  judgment.     A  judg- 
ment is  not  the  act  of  a  party;  an  estoppel  is.     A  judgment 
is  a  bar,  not  because  a  party  has  done  some  act  which  pre- 
cludes him  from  asserting  a  right  or  title;  it  is  properly  a 
bar,  on  principles  of  public  policy,  because  the  peace  and 
order  of  society,  the  structure  of  our  judicial  system,  and 
the  principles  of  our  government  require  that  a  matter  once 
litigated,  should  not  again  be  drawn  in  question  between 
the  same  parties  or  their  privies.  ^     A  party  whose  interests 
are  placed  in  jeopardy  by  a  trial,  has  a  right  to  judicial  im- 
munity from  the  consequences  of  further  trials  involving  the 
same  issues.     If  a  claim  is  in  issue  and  is  not  withdrawn  at 
the  trial,  it  should  be  disposed  of  by  the  judgment;  and  if 
the  court,  under  such  circumstances,  reserves  such  claim  by 
reciting  in  the  judgment  that  "no  judgment  is  hereby  ren- 
dered touching  the  same,"  this  action,  it  is  said,  will  be  re- 
versed on  appeal,  by  making  the  judgment  a  final  bar  to  the 
further  prosecution  of  the  claim.  ^ 

§  248.  Res  Judicata,  enforced  in  Equity. — A  final  de- 
cree in  chancery  is  as  conclusive  as  a  judgment  at  law.* 
Such  decrees  are  available  as  estoppels,  whether  the  second 
action  involving  the  same  question  be  at  law  or  in  equity.  ^ 
Hence,  a  decree  dismissing  a  bill  for  foreclosure,  on  the 
ground  that  the  mortgage  was  void,  is  a  complete  defense  to 


1  Willes,  J.  in  G.  N.  K.  E.  Co.  u. 
Mossop,  17  C.  B.  140. 

2  Huston,  J.  in  Kilheflfer  v.  Kerr,  17 


Murphy,  2G  Peun.  S.  78  ;  White  v. 
Bank  of  U.  S.,  G  Hamm.  529 ;  Bank 
of  U.  S.  i;.  Beverley,  1  How.  148;  Low 


S.  and  E,.  319;  Kennedy,  J.  in  Marsh  v.  Mussey,  41  Verm.  393;  Maguire  v 


V.  Pier,  4  Eawle,  273. 

^  Schmidt  V.  Zahensdorf,  30  Iowa, 
498. 

4  Sibbald's  Case,  12  Pet.  492;  Evans 
V.  Tatem,  9  S.  and  R.  261;  Kelsey  u.l  Miss.  599. 

259 


Tyler,  40  Mo.  403. 

5  Starke  v.  Woodward,  1  N.  and 
McC.  p.  328;  Hook  v.  Hood,  2  How. 
Miss.  807;  Moedyv.  Harper,  9  George, 


§^248-249 


LAW   OF  JUDGMENTS. 


[Chap.  XII. 


an  action  of  ejectment  subsequently  brought  by  the  mort- 
gagor.    "A  verdict  and  judgment  of  a  court  of  record  or  a 
decree  in  chancery  puts  an  end  to  all  points  thus  decided 
between  the  parties  to  the  suit.     In  this  there  is,  and  ought 
to  be,  no  difference  between  a  verdict  and  judgment  in  a 
court  of  law  and  a  decree  in  a  court  of  equity.     They  both 
stand  on  the  same  footing,  and  may  be  offered  in  evidence 
under  the  same  limitations;  and  it  would  be  difficult  to  as- 
sign  a    reason   why   it    should  be    otherwise. "^    A  judg- 
ment at  law  is  conclusive  on  the  same  question  in  equity." 
"  Nor  is  there  anything  anomalous  or  unusual  in  setting  up  a 
former  adjudication  as  an  estoppel  to  an  action  for  equita- 
ble relief.    There  is  nothing  unjust  or  inequitable  in  insist- 
ing upon  an  estoppel  by  a  judgment  upon  the  same  point  ; 
on  the  contrary,  the  rvile  is  a  beneficial  one,  and  it  is  a  mat- 
ter in  which  .the  public  is  said  to  have  an  interest  as  well  as 
the  parties,  that  there  should  be  an  end  to  litigation. "^     It 
will  be  seen  from  the  authorities  just  cited  and  quoted,  that 
the  law  of  estoppel  arising  from  a  former  adjudication,  is 
equally  applicable,  whether  the  second  action  or  proceeding 
or  the  former  litigation  be  of  a  legal  or  of  an  equitable  na- 
ture.    And  this  adoption  of  the  law  of  estop j)el  as  a  part  of 
the  principles  of  equity  jurisprudence,  shows  that  it  is,  by 
common  consent,  deemed  consistent  with  and  necessary  to 
a  disposition  of  the  rights  of  the  parties,  according  to  equity 
and  good  conscience. 

§  240.  Extent  of  the  Estoppel. — There  is  no  doubt  that 
a  judgment  or  decree  necessarily  affirming  the  existence  of 
any  fact  is  conclusive  upon  the  parties  or  their  privies, 
whenever  the  existence  of  that  fact  is  again  in  issue  between 
them,-*  not  only  when  the  subject  matter  is  the  same,  but 


1  Smith  V.  Keruoclier,  7  How.  U. 
S.  198  ;  Hopkins  v.  Lee,  6  Wheat. 
109  ;  Marsh  v.  Buroughs,  19  Am.  L. 
R.  718  ;  Wilson  v.  Broughton,  50  Mo. 
17;  The  Phoebe  Stuart's  Ad.  E. 
(Lower  Canada),  63. 

2  Pearce  v.  Gray,  2  Y.  and  C.  322. 

3  San  Francisco  v.  S.  V.  W.  W.  39 
Cal.  473. 

4:Duchess  Kingston's  Case,  11  State 

260 


Trials,  261  ;  Gahan  t).  Maiugay,  I 
Irish  T.  R.  51 ;  Crondson  v.  Leonard, 
4  Cranch.  436  ;  Outram  v.  MoroAvood 
3  East.  345  ;  Gardner  v.  Buckbee,  3 
Cow.  120  ;  Peay  v.  Duncan,  20  Ark, 
85  ;  Ilibshman  v.  DuUebau,  4  Watts. 
183  ;  Gist  v.  Davis,  2  Hill,  Ch.  335 ; 
Love  V.  Truman,  10  Ohio  St.  45  ; 
Wales  V.  Lyon,  2  Mich.  276. 


Cliap.  XII.]  EXTENT   OP   THE  ESTOPPEL.  §249 

wlien  the  point  comes  incidently  in  question  in  relation  to  A  ,, 
a  different  matter,  ^  in  the  same  or  any  other  court,  except 
on  appeal,  Avrit  of  error,  or  other  proceeding  provided  for 
its  revision.''^  "  It  is  a  universal  principle,  that  where 
power  or  jurisdiction  is  delegated  to  any  public  officer  or 
tribunal  over  a  subject  matter,  and  its  exercise  is  confided 
to  his  or  their  discretion,  the  acts  so  done  are  binding  and 
valid  as  to  the  subject  matter ;  and  individual  rights  will 
not  be  disturbed  collaterally,  for  any  thing  done  in  the  ex- 
ercise of  that  discretion  within  the  authority  and  power 
.conf3rred.  The  only  questions  which  can  arise  between  an 
individual  claiming  a  right  under  acts  done,  and  the  public 
or  any  person  denying  its  validity,  are,  power  in  the  officer, 
and  fraud  in  the  party.  All  other  questions  are  settled  by 
the  decision  made  or  act  done  by  the  tribunal  or  Officer, 
whether  executive,  legislative,  judicial,  or  special,  unless  an 
appeal  is  taken. "=^  After  judgment  on  the  merits,  the  par- 
ties "cannot  canvass  the  same  question  again  in  another 
action,  although,  perhaps,  some  objection  or  argument 
might  have  been  urged  upon  the  first  trial  which  would  have 
led  to  a  different  judgment."  *  "An  adjudication  is  final 
and  conclusive,  not  only  as  to  the  matter  actually  deter-  ^"^i; 
mined,  but  as  to  every  other  matter  which  the  parties  might 
have  litigated  and  have  had  decided,  as  incident  to  or  es- 
sentially connected  with  the  subject  matter  of  the  litigation, 
and  every  matter  coming  within  the  legitimate  purview  of 
the  original  action,  both  in  respect  to  matters  of  claim  and 
of  defense."^  "  Where  the  matter  adjudicated  is  by  a 
court  of  peculiar  and  exclusive  jurisdiction,  and  the  same 
matter  comes  incidently  in  question  before  another  court. 


1  Gray  v.  Dongherty,  25  Cal.  272  ; 
Caperton  v.  Sclimidt,  2G  Cal.  493; 
Garwood  v.  Garwood,  29  Cal.  521. 

2  Demeritt    v.   Lyford,    7    Foster 
5-41 . 

^  United  States  r.  Arredondo,  G 
Pet.  729  ;  Waugh  v.  Chauucy,  13  Cal. 
12. 

4  Greathouse  v.  Bromley,  7  T.  R. 
456. 

5  Harris  v.  Harris,    36  Barb.  SS  ; 


Clemens  v.  Clemens,  37  N.  Y.  59. 
Failure  to  plead  matters  of  defense 
which  might  have  been  pleaded  is  a 
waiver  of  them  forever.  Dewey  v. 
Peck,  33  Iowa,  242.  But  to  come 
within  this  rule,  the  matter  claim.ed 
to  be  barred  must  be  siich  that  the 
party  was  bound  to  present  it.  Mal- 
loney  v.  Horan,  49  N.  Y.  115,;  Ear- 
well  V.  Knight,  51  Barb.  2G7. 

2G1 


g ^249-250  LAW  OF  JUDGMENTS.  [Chap.  XII. 

the  sentence  in  the  former  is  conclusive  upon  the  latter,  as 
to  the  matter  directly  decided,  not  only  between  the  same 
parties  but  against  strangers,   unless  it  can  be  impeached 
on  the  ground  of  fraud  or   collusion.'"    The  discovery  of 
new  evidence,  not  in  the  power  of  the  party  at  the  former 
trial,  forms  no  exception  to  the  rule  in  relation  to  estoppels, 
Avhether  the  second  action  is  at  law  or  in  equity."  .  If  a 
judgment   of  reversal  provide  that  it  is  not  to   prejudice 
any  future   claim  which  the  appellee  may  make  on  further 
proof,  this  judgment  is  nevertheless  conclusive  in  a  second 
action,  unless  the  proof  is  different  from  that  in  the  first 
action.^     To  render  a  matter  res  judicata,  it  is  not  essen- 
tial that  it  should  have  been  distinctly  and  specifically  put 
in   issue    by  the    pleadings.     It    is    sufficient   that    it    be 
shown  to  have   been  tried  and  settled  in  the  former  suit.* 
When  a  matter  is  once  adjudicated,  it  is  conclusively  deter- 
mined as  between  the  same  parties  and  their  privies :  and 
this  determination  is  binding  as  an  estoppel,   in  all  other 
actions,  whether  commenced  before  or  after  the  action  in 
which  the  adjudication  was  made.s     Precisely  what  condi- 
tions are  indispensable  to  a  judgment  in  one  action,  in  order 
that  it  may  be  received  as  conclusive  in  another,  has  never 
been  specified  in  any  very  distinct  or  satisfactory  manner. 
We  shall,  however,  proceed  to  show  those  requisites  which 
have  been  enumerated  by  various  judges. 


PART  II. —  REQUISITES  TO   JUDGMENT  ESTOPPELS. 

§  250.  Judgment  must  be  Free  from  Collusion. — Ac- 
cording to  the  statement  made  by  Wedderburn  in  his  argu- 
ment in  the  celebrated  case  against  the  Duchess  of  Kingston, 
and  adopted  by  Lord  Brougham  in  a  subsequent  case,^ 
to  receive  credit  as  an  estoppel,  a  judgment  or  decree  must 
be  "a judicial  determination  of  a  cause  agitated  between 
real  parties,  upon  which  a  real  interest  has  been  settled.  In 


1  Lessee  of  Eliodes  v,  Selin,  4 
C.  C.  71G. 

3  Kilhofier  v.  Kerr,  17  S.  and  K, 
319. 

3  Innis  v.  Koane,  4  Call.  379. 

2G2 


4Bigclow  V.  Windsor,  1  Gray,  299. 
5  Poorman  v.  Mitchell,  48  Mo.  45. 
G  Earl  of  Bandou  v.  Becher,  3  Cla. 
and  F.  516. 


Chap.  XII.]  JUDGMENT  MUST  BE  FINAL.  g §250-251 

order  to  make  a  sentence  there  must  be  a  real  interest,  a 
real  prosecution,  a  real  defense,  and  a  real  decision.  Of  all 
these  requisites  not  one  takes  place  in  a  fraudulent  or  col- 
lusive suit.  There  is  no  judge,  but  a  person  invested  with 
the  insignias  of  a  judicial  office  is  misemployed  in  listening 
to  a  fictitious  cause  proposed  to  him.  There  is  no  party 
litigating  ;  there  is  no  party  defendant,  no  real  interest 
brought  in  question. "i  It  is  also  said  that  the  principle  of 
res  judicata  cannot  be  invoked  to  sustain  fraud.  ThereforCj 
in  an  action  against  several  judgment  defendants  upon  a 
judgment,  one  of  them  may  show  that  it  was  obtained  by  a 
conspiracy  between  the  plaintiff  and  one  of  the  defendants.  ^ 

§  251.  Judgment  must  be  Final. — No  question  becomes 
res  adjudicata  until  it  is  settled  by  a  Jinal  judgment.  For 
this  reason,  the  verdict  of  a  jury  is  not  admissible  as  evi- 
dence to  create  an  estoppel,  before  it  has  received  the  sanc- 
tion of  the  court,  by  passing  into  a  judgment.  Until  then, 
it  is  liable  to  be  made  nugatory  by  an  order  arresting  judg- 
ment or  granting  a  new  trial.  ^  But  where  no  power  exists 
to  destroy  the  effect  of  a  verdict,  it  is  conclusive  in  the  ab- 
sence, of  any  judgment.  Thus,  where  a  justice  of  the  peace 
was,  by  law,  bound  to  enter  a  judgment  according  to  the 
findings  of  the  jury,  and  had  no  authority  to  arrest  it  nor  to 
awOrPd  a  new  trial,  it  was  held  that  his  omission  to  comply 
with  the  law  did  not  prevent  the  verdict  from  barring  a  new 
suit.  "The  entry  of  judgment  was  a  thing,  of  course,  and 
in  justice  and  sound  policy,  the  verdict  ought  to  be  equally 
conclusive  against  any  further  litigation  between  the  same 
parties,  on  the  same  matter,  as  if  the  formal  entry  of  judg- 
ment had  been  made."^  The  same  reasons  which  require 
that  a  verdict  should  not,  by  itself,  be  regarded  as  con- 
clusive, are  equally  applicable  to  such  interloctuory  judg- 
ments or  decrees,  as  may,  at  any  time,  be  modified  or 
vacated  by  the  court  which  rendered  them.^     The  rule  upon 


1  Duchess  Kingston's  Case,  11  State 
Trials. 

Spencer  v.  Vigneaux,  20  Cal.  442. 

sEidley  v.  Spenser,  2  Binney,  70; 
"Whitaker  v.  Branison,  2  Paine,  209; 
McEeady  v.    Rogers,    I   Nebr.    124; 


Schurmeier  v.  Johnson,  10  Minn. 
319;  Gilbert  v.  Graham,  East.  T. 
1873,  in  New  Brunswick. 

4Feltner  v.  Mulliuer,  2  Johns.  181. 

SBaugh  V.  Baugh,  4  Bibb.  556. 

2G3 


§§251-252  LAW  OF  JUDGMENTS.  [Chap.  Xil. 

this  subject,  and  the  grounds  upon  which  it  is  based,  are 
■well  stated  by  Pothier.  He  says:  "A  judgment  to  have 
the  authority,  or  even  the  name,  of  res  judicala,  must  be 
a  definitive  judgment  of  condemnation  or  dismissal.  A 
provisional  condemnation,  then,  cannot  have  either  the 
name  or  the  authority  of  res  Judicata,  for  although  it  gives 
the  party  obtaining  it  a  right  to  compel  the  opposite  party 
to  pay,  or  deliver  provisionally,  the  money  or  things 
demanded,  it  does  not  put  an  end  to  the  cause,  or  form  a 
presumption  juris  de  jure,  that  what  is  ordered  to  be  paid 
or  delivered  is  due,  since  the  party  condemned  may  be 
admitted  in  the  principal  case  to  prove  that  what  ho  was 
ordered  to  pay  was  not  due,  and  consequently  to  obtain 
a  reversion  of  the  judgment. "^ 

§  252.  Idsntities  Dsmanded. — -*'To  make  a  matter  res 
adjudicata,  there  must  be  a  concurrence:  1st,  of  identity 
of  the  subject  matter;  2d,  of  the  cause  of  action;  3d,  of 
person  and  parties;  and  fourth,  in  the  quality  of  the  per- 
sons for  or  against  whom  the  claim  is  made."-  According 
to  another  case,  the  requisites  are;  1st,  that  the  judgment 
proceed  from  a  court  having  jurisdiction;  2d,  that  it  be 
between  the  same  parties ;  and  3d,  that  it  be  for  tho-same 
purpose.^  In  Massachusetts,  to  ascertain  whether  a  judg- 
ment is  a  bar,   the  courts  will  inquire : 

1st.  Whether  the  subject  matter  in  controversy  has  been 
brought  in  question,  and  within  the  issue  in  the  former 
proceeding,  and  has  terminated  in  a  regular  judgment  on 
the  merits; 

2d.  Whether  the  former  suit  was  between  the  same 
parties,  in  the  same  right  or  capacity,  or  their  privies 
claiming  under  them; 

3d.  Whether  the  former  judgment  was  before  a  court 
of  competent  jurisdiction.  * 

That  a  judgment,  to   constitute  an  estoppel,   must  pro- 


1  Pothier  Ob.,  part  4,  ch.  3,  sec.  3, 
art.  1. 

2  Benz  V.  Hines,  3  Kansas,  397;  2 
Bouvier  Die,  Title  "Res  Judicata." 

3  Aspden  v.  Nixon,  4  How.  U.  S. 
4G7,  497. 

264 


4Bigelo-w  V.  Winsor,  1  Gray,  299. 
See,   also,  McDouough's  Succession, 
24  La.  Au.  33;  Miller  v.  McManis,  57 
111.  126;  Tucker  v.  llohrbock,  13  Micli 
75. 


Chap.  XII.]       IDENTITY   OF   SUBJECT  MATTER.  gg252-253 

ceed  from  a  court  of  competent  jurisdiction,  is  a  propo- 
sition which  requires  neither  arguments  nor  authorities 
to  prove  its  existence,  or  to  illustrate  its  application.  The 
necessity  of  a  judgment  being  between  the  same  parties, 
or  their  privies,  and  the  limitation  and  extensions  of  the 
rule  in  this  respect,  have  already  been  fully  considered 
in  the  chapter  on  parties.  But  the  cases  cited  seem  to 
demand  the  existence  of  the  following  identities  between 
two  suits,  to  constitute  the  first  decided  a  bar  to  the 
further  prosecution  of  the  second,  to  wit:  1st,  identity  of 
subject  matter;  2d,  identity  of  cause  of  action;  and  3d, 
identity  of  purpose  or  object.  Y/hile  a  concurrence  of  these 
identities  usually  attends,  when  one  case  is  determined  by 
the  decision  in  another,  yet  the  second  named,  only,  is 
indispensable  to  impart  a  conclusive  effect  to  a  former  judg- 
ment, as  will  be  manifest  by  reference  to  a  few  of  the  re- 
ported cases. 

§  253.  Identity  of  Subject  Matter. — The  principle  is 
recognized  and  supported  in  most  of  the  American  cases, 
that  a  decision  upon  any  material  point,  is  conclusive 
though  the  subject  matter  of  the  two  suits  be  different.^ 
N.  sued  R.,  a  servant  of  C,  for  property.  C.  defended  for 
his  servant,  claiming  title  under  a  chattel  mortgage  from 
H. ;  N.  claimed  under  judgment  against  H.,  and  sought  to 
impeach  the  mortgage,  on  the  ground  that  it  was  fraudulent 
as  to  creditors.  At  the  trial,  N.  failing  to  prove  his  judg- 
ment, the  decision  was  in  favor  of  R.  C.  afterward  sued 
N.  for  the  same  property,  and  contended  that  the  judg- 
ment in  favor  of  R.,  under  the  circumstances,  was  con- 
clusive that  the  property  belonged  to  C.  N.,  to  avoid  the 
operation  of  the  estoppel,  contended,  1st,  that  in  the 
former  suit,  the  chattel  mortgage  matter  had  not  been 
determined;  2d,  that  the  parties  were  different.  But  it 
was  held  that  the  issues  in  the  first  suit  were  such  that 
the  findings  of  either  in  favor  of  C,  constituted  an  es- 
toppel.    One   issue   was    the   bona  fides  of  the  mortgage, 


1  Spencer  v.  Dearth,  43  Verm.  98. 
Betts  r.  Starr,  5  Conu.  550;  Doty  v. 
Brown,  4  N.  Y.  71;  Williams  v.  Fitz- 


hiigh,  4t  Barb.  321;  Walker  v.  Chase, 
53  Me.  258, 

265 


§253  LAW  or  JUDGMENTS.  [Chap.  XII. 

the  other  vra,^  the  title   of  N.  to  the  property  in  dispute, 
N.  having  failed  to  show  that  he  was  a  judgment  creditor, 
could  not  ou  that  account,   raise  the  question  of  bona  fides, 
and  ho  is  now  estopped.  ^     A  verdict  in  a  summary  of  pro- 
ceedings, to  remove  a  tenant  for  non-payment  of  rent,  finding 
that  no  rent  is  due,  is  conclusive  in  favor  of  the  tenant,   in 
a  replevin  suit  brought  by  him  to  recover  cattle  distrained 
by  the   landlord,    to  satisfy  the  same  claim  of  rent.  -     The 
only  matter  essential  to  making  a  former  judgmei^t  on  the 
merits,  conclusive   between  the   same  parties,   is  that  the 
question  to  be  determined  in  the  second  action,  is  the  same 
question  judicially  settled  in  the  first.     A  judgment  is  con- 
clusive, not  Only  as  to  the  subject  matter  in  suit,    but  as  to 
all   other   suits,    which,    though  concerning   other  subject 
matters,    involve   the  same  questions  of   controversy.^     A 
judgment  in  favor  of  a  bond  holder,  upon  certain  municipal 
bonds  against  the  town  issuing  them,    is  conclusive  on  the 
question   of  the  validity  of  other  bonds  being  part  of  the 
same  issue,   in  an  action  between  the  same  parties,    all  the 
objections  and  matters  of  defense  in  the  second  action  hav- 
ing been  equally  available  to  the  town  in  the  first. ^     If  A., 
as   a   defense  to  an  action  against  him,    plead  that  he  has 
been  released  from  the  liability,  by  virtue  of  his  discharge 
in  a  proceeding  for  the  relief  of  insolvent  debtors,  and  the 
plaintiff  seek  to  avoid  the  discharge,    on  the  ground  that  it 
was  procured  by  fraud,  a  judgment  for  the  defendant  is  con- 
clusive in  his  favor  upon  the  question  of  fraud,  in  any  other 
action  between  the  same  parties,  though  upon  a  different 
contract.^     If  an  issue  be  tried  in  any  proceeding,  as  to 
whether  the  defendant  is  a  member  of  a  firm,  the  result  of 
the  trial  will  be  conclusive  between  the  parties  whenever 
the  same  issue  again  arises  between  them.''     After  a  judg- 
ment has  been  recovered  for  a  quarter's  rent  upon  a  lease, 
no  defense  can  be  made  in  a  subsequent    action  for  rent 
alleged  to  be  duo  upon  the  same  lease,  substantially  involv- 


1  Castle  V.  Noyes,  14  N.  Y.  329. 

8  White  V.  Coatsworth,  G  N.  Y.  138. 

3  Gardner  v.  Buckbee,  3  Cow.  120. 
Bouchand  v.  Dias,  3  Denio,  238;  Bab- 
cock  V.  Campbell,  12  Ohio,  S.  11. 

2G6 


<Be]oit  V.   Morgan,   7  Wall.    G19. 
San  Autonio  v.  Lane,  32  Tex.  -111. 
5  Merriam  r  Whittemoro,   5   Gray. 
f>  Lynch  v.  Swanton,  53  Maine,  100. 


Chap.  XII.]        IDENTITY  OF   SUBJECT  MATTER,  §253 

ing  the  same  points  decided  against  the  defendant  in  the 
first  suit.  ^  If  an  instrument  has  been  judicially  construed, 
this  construction  must  be  adopted  in  every  other  contro- 
versy between  the  parties,  in  which  the  effect  of  the  same 
instrument  is  brought  in  question.  ^  A.  sold  land  to  B., 
and  agreed  to  cease  keeping  tavern,  on  adjacent  land,  as 
soon  as  B.  built  certain  buildings.  B.  afterward  recovered 
in  an  action  for  a  breach  of  this  agreement.  In  a  second 
action,  claiming  damages  for  a  subsequent  breach,  it  was 
held  that  the  only  matters  upon  which  defendant  was  not 
concluded,  were  the  subsequent  breach  and  the  amount  of 
damages  resulting  from  it.s  If  a  suit  to  recover  an  install- 
ment of  purchase  money,  be  defended  on  account  of  an 
alleged  failure  of  title  occasioned  by  incumbrances,  the 
decision  of  the  court  is  conclusive  upon  that  subject,  in 
any  future  action,  to  recover  a  subsequent  installment  fall- 
ing due  on  the  same  purchase.^  After  a  decree  in  favor  of 
plaintiff,  upon  a  contract  for  the  payment  of  money  in  in- 
stallments, the  only  question  open  to  litigation,  in  respect 
to  any  subsequent  installment,  is  whether  as  to  it  the  de- 
fendant is  in  default.  Upon  this  question,  the  defendant  is 
entitled  to  a  hearing,  and  if  a  sale  be  made  without  such 
hearing,  for  the  purpose  of  paying  a  sum  which  has  fallen 
due  since  the  entry  of  the  original  decree,  and  which  is 
alleged  to  remain  unpaid,  the  sale  is  void.®  The  recovery 
by  judgment  of  a  sum  claimed  to  be  due  as  inter- 
est on  a  promissory  note,  precludes  the  defendant  from  con- 
testing the  payment  of  the  principal,  on  the  ground  that 
the  note  was  procured  by  fraud;''  or  upon  any  other  de- 
fense involved  in  the  former  suit. '"  Some  of  the  English 
courts,  if  we  may  judge  from  the  opinions  expressed  by 
Lord  Chelmsford,  deny  the  application  of  the  principle 
of  res  judicata,  to  cases  where  the  subject  matter  of  the 
two   suits  is   not   identical.     Hence    he    determined   that 


1  Kelsey  v.  Ward,  38  N.  Y.  83;  Love 
V.  Waltz,  7  Cal.  250. 

2  Stewart  v.  Stebbins,  30  Miss.  66; 
Bloodgood  V.  Carsey,  31  Ala.  575. 

3  Heicbev/  v,  Hamiltou,  4  G.  Greene, 
317. 


*  Kane  v.  Fisher,  2  Watts.  246. 
5  Perkins  v.  Perkins,  16  Mich.  162. 
G  Edgell  V.  Sigerson,  23  Mo.  583. 
■?  Black  Pdver  Saving  Bank  v.  Ed- 
wards, 10  Gray,  387. 

267 


§§253-255 


LAW  OF  JUDGMENTS. 


[Chap.  XII. 


a  judgment  against  one  poor  rate,  was  not  binding  in 
a  controversy  in  reference  to  a  subsequent  rate,  though 
the  issues  in  the  two  controversies  were  the  same,  ^ 

§  254,  Identity  of  Purpose. — It  has  been  said  that  the 
cause  and  object  of  the  action  being  the  same,  the  former 
judgment  bars  the  suit,  but  the  principle  runs  through 
nearly  all  the  American  cases,  that  a  judgment  is  conclu- 
sive, if  upon  the  direct  point,  though  the  objects  of  the  two 
suits  be  different. 2  A  judgment  against  the  assignee  of  an 
insolvent  debtor  in  an  action  brought  to  set  aside  a  convey- 
ance, is  conclusive  against  him  in  an  action  of  trover,  to 
recover  of  the  same  defendants,  any  of  the  property  in- 
cluded in  the  conveyance.  3  One  who  defends  an  action  to 
recover  for  work,  on  the  ground  that  the  work  was  so  done 
as  to  be  of  no  value,  and  fails  to  establish  his  defense,  is 
precluded  from  afterward  maintaining  any  suit  against  the 
plaintiff  for  damages  alleged  to  have  arisen  fi'om  the  un- 
skillful doing  of  the  same  work.* 

§  255.  Identity  of  Form  of  Action. — By  the  rules  of  the 
civil,  as  well  as  of  the  common  law,  "res  judicata  is  not 
changed  by  a  change  in  the  form  of  action."^  It  is  not 
material  that  the  form  of  action  be  the  same,  if  the  merits 
were  tried  in  the  first.  A  judgment  for  the  defendant  in 
trover,  for  conversion  of  goods,  is  a  bar  to  an  action  against 
hiiii  for  money  had  and  received  from  the  proceeds  of  the 
sale  of  the  same  goods.  No  party  can  bring  the  same  cause 
of  action  twice  to  a  final  determination.  "^  The  form  of  pro- 
cedure is  immaterial.  If  proper  parties  join  issue  upon  a 
question  of  law  or  of  fact,  before  a  competent  court,  they 
must  abide  by  the  decision.  Hence  it  was  held  in  Louisiana, 
that  a  party  who  had  proceeded  by  rule  to  arrest  an  execu- 
tion, and  had  in  that  manner  had  a  complete  hearing  on  the 


^  Commissioners  v.  Inspectors,   L. 
R.  1  H.  L.  Sc.  Ap.  22. 

2  Note  2G1   to   Ph.  Ev.;  Barker  v. 
Cleavelaud,  19  Mich.  230. 

3  Bigelow  V.  Winsor,  1  Gray,  299. 

*  Merriam  v.  Woodcock,  10-i  Mass. 
326. 

268 


5  Pothier  P.  4  C.  3  S.  3,  Art.  4; 
Eastman  v.  Cooper,  15  Pick.  285. 

c  Lawrence  v.  Vernon,  5  Sumner, 
p.  20;  nitchen  v.  Campbell,  2  W. 
Cla.  778  and  827;  Ferrer's  Case,  6 
Coke,  7. 


Chap.  XII.]  IDENTITY  OF  ISSUES.  §§255-256 

merits,  resiilting  in  a  discharge  of  the  rule,  was  barred  from 
obtaining  an  injunction  in  an  action  brought  for  that  pur- 
pose, unless  he  could  show  other  facts  than  those  existing 
at  the  time  of  discharging  the  rule.  ^  But  in  this  applica- 
tion of  the  law  of  estoppel,  the  court  in  Louisiana  probably 
proceeded  contrary  to  the  current  of  decisions,  as  will  be 
seen  when  we  consider,  in  a  subsequent  section  of  this 
chapter,  the  estoppels  arising  from  the  decisions  of  motions. 
As  a  general  rule,  no  one  will  be  debarred  by  the  decision 
of  any  motion  or  proceeding  arising  out  of  an  action,  but 
will  be  allowed  to  litigate  the  same  matters  in  any  inde- 
pendent suit  in  which  they  are  drawn  in  question.  But 
"when  one  is  barred  m  any  adion,  real  or  personal,  by  a 
judgment  on  demurrer,  confession,  verdict,  etc.,  he  is 
barred  as  to  that  or  the  like  action  of  the  like  nature  for 
the  same  thing  forever." 

§  256.  Identity  of  Issues. — It  will  be  seen,  from  examin- 
ing the  authorities  already  cited,  that  to  render  any  judg- 
ment or  other  final  adjudication  proceeding  from  court  of 
competent  jurisdiction,  available  as  a  bar  in  a  second  action 
between  the  same  parties  or  their  privies,  two  things  only 
are  essential,  viz. :  1st,  That  the  issue  in  the  second  action, 
upon  which  the  judgment  is  brought  to  bear,  was  a  mate- 
rial issue  in  the  first  action,  necessarily  determined  by  the 
judgment  therein;  2d,  That  the  former  judgment  was  upon 
the  merits.  The  chief  difficulty  in  applying  a  former  judg- 
ment to  a  present  litigation,  arises  from  the  necessity  of 
determining  what  were  the  matters  affirmed  or  denied  by 
the  former  decision.  In  determining  this  question,  it  may 
be,  and  frequently  is,  impossible  to  obtain  sufficient  data  to 
form  any  satisfactory  conclusion,  without  looking  beyond 
the  record  in  the  former  suit,  and  ascertaining  from  any 
other  competent  evidence,  what  were  the  real  issues  brought 
before  the  court,  and  necessarily  entering  into  the  consid- 
eration of  the  judgment.  And  whether  the  issues  in  the 
former  action  sufficiently  appear  from  the  record,  or  are 
made  known  by  extrinsic  proofs,  the  necessity  still  remains 
of  deciding  whether  a  matter   controverted  at  the  former 

1  Prescott  V.  Lewis,  12  La.  Au.  197. 

269 


§256  LAW   OF  JUDGMENTS.  [Cliap.  XII. 

trial,  was  a  material  issue,  or  a  mere  matter  of  evidence 
brought  forAvard  to  aid  in  establishing  some  material  issue. 
Courts  have,  from  time  to  time,  endeavored  to  lay  down 
general  rules,  or  more  properly  speaking,  general  descrip- 
tions, by  which  to. determine  what  questions  are,  and  what 
are  not  settled  by  a  former  adjudication.  Wo  shall  now 
state  some  of  these  general  descriptions,  leaving  the  reader 
to  harmonize  them  if  he  can,  and  feeling  that  if  he  cannot, 
he  is  not  less  successful  than  we  have  been. 

A  judgment  is  conclusive  upon  every  matter  actually  and 
necessarily  decided  in  the  former  suit,  though  not  then 
directly  the  point  in  issue.  If  the  facts  involved  in  the 
second  suit,  are  so  cardinal  that,  without  them,  the  former 
decision  cannot  stand,  they  must  now  be  taken  as  conclu- 
sively settled.  In  an  order  of  settlement,  John  G.  and 
William  G.  were  adjudged  to  be  the  lawful  children  of 
William  G.  and  Esther  G.,  and  to  have  their  settlement 
in  a  certain  township.  Afterward,  a  contest  arose  in  rela- 
tion to  the  settlement  of  Esther  G.  Whereupon,  it  was 
considered  that,  as  the  settlement  of  the  children  depended 
on  that  of  their  father,  and  on  his  marriage  with  their 
mother,  Esther,  the  father's  settlement  and  marriage  must 
have  been  decided  as  the  ground  work  of  the  former  order, 
and  that  as  those  facts  which  upheld  the  order  of  settlement 
of  the  children,  were  necessarilj^  and  exclusively  applicable 
to  their  mother,  her  settlement  was  fixed  by  the  decision  in 
relation  to  that  of  her  children.  ^  And  in  Vermont  it  was 
decided  that  the  adjudication  upon  an  order  of  r(!moval, 
that  a  woman  had  a  settlement  in  W.  was  conclusive  between 
the  same  parties,  in  a  proceeding  to  remove  her  illegitimate 
son,  who,  being  a  minor,  could  obtain  no  settlement  for 
himself,  and  whose  settlement  was  thei'efore  necessarily 
identical  with  that  of  his  mother.^  In  a  number  of  cases, 
several  notes  were  given  in  payment  for  property  purchased 
of  the  payee;  and  in  a  suit  on  the  first  note  due,  the  de- 
fense of  want  of  consideration  arising  from  fraud  in  the 
sale,  or  from  the  worthless  character  of  the  property  sold, 

1  Eegina  v.  Hartington,  4  El.  &  Bl.  I     2  Cabot  v.  "Washington,  41  Vt.  1G8. 
p. 780.  I 

270 


Chap.  XIT.] 


IDENTITY   OF  ISSUES. 


?256 


was  made.     The  opinions  of  the  courts  as  to  whether  the 
decision  upon  the  first  note  was  conclusive  upon  the  same 
questions  arising  in  suits  upon  the  other  notes,  seem  to  bo 
very  equally  divided.     In  New  York/  and  in  Georgia/  the 
former  judgment  is  a  bar;  in  Massachusetts^  and  in  Iowa/ 
it  is  not.     In  the  last  named  State  it  is  conceded,  however, 
that  a  decision  upon  the  validity  of  one  of  the  coupons  at- 
tached to  a  bond,  is  conclusive  upon   the  validity  of  any 
other  coupon  attached  to  the  same  bond.^     In  New  York, 
where  A.  and  B.  were  sureties  for  the  same  person  on  two 
bonds,  an  action  by  A,  for  contribution  from  B.,  for  money 
paid  upon  one  bond,  was  held  to  be  conclusive  in  a  like 
suit  upon  the  other  bond,  the  same  defense  being  offered  in 
both  suits. ^     In  New  York  it  is  well  settled  that  the  recov- 
ery by  a  physician  of  a  judgment  upon  his  claim  for  pro- 
fessional services,  is  a  conclusive  affirmance  of  the  valuable 
character  of  those  services,  and,  as  such,  is  a  bar  to  any  ac- 
tion against  him  for  malpractice,^  although  the  former  judg- 
ment was  rendered  without  any  claim  of  malpractice  being 
offered  as  a  defense,^  and  although  such  defense  was  ex- 
pressly  withdrawn   before   going   to   trial. ^     E.    a   tenant, 
committed  an   act   of  bankraptcy.     An   assignee   was   ap- 
pointed, who  entered  on  the  demised  land,  and  drove  off 
cattle  to  prevent  their  being  distrained.     They  were  pur- 
sued and  seized  by  the  landlord's   bailiff.     The  assignee 
brought  an  action  of  replevin  for  the  cattle.     This  action 
turned  upon  the  question  whether  the  assignee,  by  his  en- 
try, became  a  tenant,  that  is,  whether  he  had  elected  to  re- 
ceive the  lease  instead  of  relinquishing  it  as  damnosa  here- 
ditas.     The  action  having  been  determined  against  him,  it 
was  held,  in  a  subsequent  controversy  between  him  and  the 
landlord,  to  conclusively  establish  his  tenancy."   Btill  there 


1  Gardner  v.  Buckbee,  3  Cow.  120. 

2  Freemtm  v.  Bass,  31  Geo.  355. 

3  Eastman  v.  Cooper,  15  Pick.  276. 
*  Clark  V.  Scammons,  12  Iowa,  36S. 
3  Wliitaker  v.  Johnson  Co.,  12  Iowa, 

p.  595. 

6  Boucbaud  v.  Dias,  3  Denio,  243. 

7  Edwards  v.  Stewart,  15  Barb.  G7. 

8  Gates  u.  Preston,  41  N.  Y.  113. 


9  Bellinger  v.  Craigue,  31  Barb.  534. 

10  Hancock  v.  Welch,  1  Stark,  N.  P. 
347.  A.  gave  a  horse  to  B.  to  board, 
with  instructions  not  to  use  him.  B. 
used  the  horse  and  foundered  him.  A. 
abandoned  the  horse  and  sued  for  his 
conversion.  B.  then  sued  for  the 
horse's  board.  A.  set  up  defense  of 
the  conversion.     The  justice,  on  de- 

271 


§25G  LAW  OF  JUDGMENTS.  [Chap.  XII. 

are  not  wanting  cases  in  which  a  question  has  been  allowed 
to  be  relitigated,  on  the  mere  pretext  that  the  matter  nec- 
essarily involved  in  a  former  action  was  only  collaterally  or 
incidentally  in  issue.  Thus,  in  an  early  case  in  New 
Hampshire,  the  plaintiff  recovered  damages  for  the  non- 
fulfilment  of  a  contract  to  work  for  a  year,  though  he  had 
defended  an  action  against  him  by  the  defendant  for  two 
months  labor  of  the  same  3'ear,  on  the  ground  of  a  special 
hiring  for  the  whole  year,  and  had  failed  in  his  defense.^ 
In  New  Jersey,  a  chief  of  police  was  discharged  on  a  cer- 
tain day,  by  the  town  council,  if  it  had  power  to  do  so. 
He  commenced  a  suit  for  his  salary,  after  the  attempted 
discharge,  and  obtained  judgment.  He  then  sued  for  sal- 
ary accruing  after  the  commencement  of  the  fonner  action. 
It  was  conceded  that  the  question  of  his  discharge  was  de- 
cided in  his  favor  in  the  first  suit;  but  it  was  considered 
the  question  was  not  concluded  in  the  second  action  because 
it  was  a  matter  of  laiv.-  A  good  illustration  of  the  rule  that 
the  effect  of  a  former  adjudication  extends  to  evenj  question 
necessarily  litigcited  between  the  parties,  and  is  not  con- 
fined to  actions  having  the  same  purpose,  or  involving  the 
same  subject  matter,  is  found  in  a  case  decided  by  the  Su- 
preme Court  of  California.  J.  W.  and  T.  made  a  note  in 
favor  of  D.  T.,  being  the  owner  of  a  tract  of  land,  soon 
after  conveyed  it  to  D.  After  the  maturity  of  the  note,  D. 
sued  J.  T.  and  W.  upon  it.  J.  made  no  defense.  T.  and 
W.  answered  that  they  were  accommodation  makers  without 
any  considerations,  and  that  the  deed  to  D.  was  made  and 
accepted  as  a  discharge  of  the  note.  Issue  was  taken  upon 
this  point,  and  the  trial  of  the  case  was  directed  to  the 
question,  whether  the  deed  was  accepted  as  a  securitij  or  as 
a  satisfaction  of  the  debt.  The  jury  found  in  favor  of  the 
defendants,  and  judgment  was  entered  accordingly.     Two 


1  To-svn  V.  Nims,  5  N.  H.  259. 


*  Bernliard  v.  City  of  noboben,  3 
Dutcher,  412. 


miirrer,  overruletl  this  defense,  and 
afterwards  entered  judgment  against 
A.  for  the  horse's  board.  This  was 
held  to  estop  A.  from  maintaining  his 
action  for  conversion;  because  it  was 

272 


not  possible  for  A.  to  have  been  liable 
for  the  board,  if  B.  had  previously 
converted  the  horse.  Collins  v.  Ben- 
nett, 4G  N.  Y.  490. 


Chap.  XII.l 


FACTS  IN  ISSUE. 


§§250-257 


days  after  entry  of  this  judgmeut,  T.  conveyed  the  same 
lands  to  J.,  who,  thereafter,  commenced  suit  against  D.  to 
recover  them,  on  the  ground  that  the  former  deed  to  D. 
was  a  mortgage.  It  was  held  that  the  character  of  the  deed 
was  in  issue  in  the  former  action,  and  that  J.  could  not 
prove  its  character  to  be  different  from  what  it  was  then 
determined  to  be.'  But  in  Indiana,  an  adjudication  in  an 
action  to  recover  certain  property,  that  the  assignment  un- 
der which  plaintiff  claimed  was  void  on  account  of  being 
tainted  by  fraud,  was  held  to  be  confined  in  its  effect  to  the 
subject  maiter  of  that  controversy,  and  not  to  impair  the 
claim  of  the  plaintiff  to  other  property  included  in  the  same 
assignment."  An  entirely  similar  opinion  is  supported  by 
^  the  courts  of  New  Hampshire,  on  the  grounds  that  the  as- 
signment is,  in  the  first  action,  a  matter  of  evidence,  and 
not  a  matter  in  issue;  and  that  the  only  issue  before  the 
court  is,  whether  plaintiff  has  title  to  the  subject  matter  of 
the  suit.' 

g  257.  Extends  only  to  Facts  in  Issue. — The  former 
verdict  is  conclusive  only  as  to  facts  directly  and  distinctly 
put  in  issue,  and  the  finding  of  which  are  necessary  to 
uphold  the  judgment.*  The  doctrine  of  estoppel  is  re- 
stricted to  facts  directly  in  issue,  and  does  not  extend  to 
facts  which  may  be  in  controversy,  but  which  rest  in  evi- 
dence, and  are  merely  collateral.  "A  fact  or  matter  in  is- 
sue is  that  upon  which  plaintiff  proceeds  by  his  action,  and 
which  the  defendant  controverts  in  his  pleadings,  while  col- 
lateral facts  are  such  as  are  offered  in  evidence  to  establish 
the  matters  or  facts  in  issue. "^  "It  must  appear  that  the 
matter  set  up  as  a  bar  was  in  issue  in  the  former  salt.  If 
a  suit  be  brought  to  procure  the  entry  of  satisfaction  of  a 
mortgage,  and  the  judgment  is  that  -the  mortgage  is  not  sat- 
isfied because  a  specified  amount  remains  unpaid,  this  judg- 
>  ment  is,  in  subsequent  controversies  between  the  parties, 
conclusive  that  the  mortgage  was  not  paid,  but  the  amount 


•1  Jackson  v.  Lodge,  36  Cal.  28. 
«  Eobcrts  V.  Robeson,  27  Ind.  454. 
s  King  V.  Chase,  15  N.  H.  9;  Taylor 
t;.  Dustin,  43  N.  H.  493. 

4  Hunter  v.  Davis,  19  Ga,  413;  De 

(14) 


St.  Eomes  v.  G.  C.  &  N.  Co.  24  La. 
An.  331.  Glass  v.  Wheeler,  24  La. 
An.  397. 

3  Garwood  v.  Garwood,  29  Cal.  521; 
King  V.  Chase,  15  N.  H.  IG. 
273 


§^257-258  LAW  OF  judgments.  [Cheap.  XII. 

due  is  still  uusettled  because  it  was  not  in  issue  in  a  former 
suit."'     A  decree  setting  aside  a  deed  does  not  affect  auy  title 
Leld  by  defendant,  and  not  deraigned  tlirougli  such  deed.- 
An  estoppel  extends  beyond  what  appears  on  the  face  of  the 
judgment  to  every  allegation  which,  having  been  made  on 
the  one  side  and  denied  on  the  other,  was  at  issue  and  de- 
termined in  the  course  of  the  proceedings.     It  not  only  es- 
tablishes the  case  of  the  plaintiff,  but  disproves  or  negatives 
that  of  the  defendant.  ^     The  record  of  a  former  recovery 
is  competent  evidence  in  a  second  action  "when  the  point 
in  issue  is  the  same  in  both,  or  when  some  question  raised 
and  to  be  passed  upon  in  the  last  lias  already  been  deter- 
mined in  the  iirst."*     "  It  is  not  the  object  of  the  suit,  the 
recover}^  or  fruits  of  the  litigation  alone,   that  constitute > 
the  estoppel,  but  the  facts  put  in  issue  and  found,  upon 
which  the  recovery  is  based — facts  in  issue  as  distino^uished 
from  the  evidence  in  controversy.  "^     It  is  not  necessary  to 
the  conclusiveness  of  the  former  judgment  that  the  issue 
should  have  been  taken  upon  the  precise  point  which  it  is 
proposed  to  controvert  in  the  collateral  action.     It  is  suffi- 
cient if  that  point  was  essential  to  the  former  judgment.' 
'  'Every  point  which  has  been  either  expressly  or  by  neces- 
sary implication  in  issue,  which  must  necessarily  have  been 
decided  in  order  to  support  the  judgment  or  decree,  is  con- 
cluded.'"'    "It  is  allowable  to  reason  back  from  a  judgment 
to  the  basis  on  which  it  stands,  upon  the  obvious  principle 
that,  where  a  conclusion  is  indisputable,  and  could  have 
been  drawn  only  from  certain  premises,   the  premises  are 
equally  conclusive  and  indisputable  with  the  conclusion. 
But  such  an  inference  must  be  inevitable,  or  it  cannot  be 
drawn." 

§  258.  Confined  to  Matters  of  Issue  and  Decided. — ^No 
judgment  or  decree  is  evidence  in  relation  to  any  matter 
which  came  collaterally  in  question,  nor  to  any  matter  inci- 


^  Campbell  v.   Consalus,  25  N.  Y. 
613. 

2  Bcesou  V.  Conley;  10  Mich.  103. 

3  Stevens  v.  Hughes,  7  Casey,  381. 
*  Sage  i\  McAlpiu,  11  C\ish.  1C5. 

5  Caperton  v.  Schmidt,  2G  Cal.  -179. 
27  i 


6  Lee  V.  Kingsbury,  13  Tex.  68. 

7  B.  of  S.  V.  M.  P.  B.  R.  Co.  24 
Wis.  124. 

8  Burlcn  v.  Shannon,  99  Mass.  200; 
Lea  V.  Lea,  Id.  403. 


Cliap.  XII.]  MATTERS  or  ISSUE.  g258 

dentally  cognizable,  or  to  bo  inferred  from  tlio  judgment 
only  by  argument  or  construction,  i     An  estoppel  cannot  be 
created  by  mere  argument.     A.  owned  a  saw-mill,  and  A. 
and  B.  owned  a  grist-mill,  both  of  wliicli  were  run  by  water 
from  the  same  dam,  and  had  wheels  on  the  same  level,  and 
were  equally  affected  by  backwater  from  the  mill  of  C,  sit- 
uate on  the  same  stream.     A.  brought  an  action  against  C. 
for  damages  occasioned  by  water  being  backed  upon  his 
saw-mill,  in  which  it  was  settled  that  C.'s  dam  backed  the 
water  so  as  to  injure  the  saw-mill.     A.  and  B.  then  sued  for 
damages  occasioned  to  their  grist-mill,  and,  upon  tibial,  it 
was  found  that  C.'s  dam  did  not  back  the  water  upon  the 
grist-mill.     After   the  judgment   in   favor   of  C,   A.  com- 
menced a  second  action  against  C.  for  damages  to  the  saw- 
mill.    It  was  agreed  that,  upon  the  facts  of  the  case,  there 
ought  to  be  the  same  finding  in  respect  to  both  the  saw- 
mill and  the  grist-mill.     The  Court  held  that   the  former 
adjudication  between  A.  and  C.  was  upon  the  precise  ques- 
tion now  in  controversy;  that  the  judgment  in  the  case  con- 
cerning the  grist-mill  was,  at  most,  not  upon  the  same  point 
involved  in  the  present  suit,  but  upon  a  fact  which,  by  ar- 
gument only,  is  shown  to  be  applicable  in  this  case.     That 
this  is  not  one  adjudication  against  another,  but  only  an 
adjudication  one  way,  and  a  probable  argument  founded  on 
another  adjudication  of  a  distinct  question  the  other  way. 
It  leaves  the  effect  of  the  first  judgment  untouched.  3     In 
determining  what  has  been  decided,  and  what  has  therefore 
become  a  binding  adjudication,  the  actual  judgment  of  the 
Court  must  be  consulted,  and,  so  far  as  it  speaks,  must  be 
allowed  to  control.     Its  clear  import  cannot  be  modified  or 
controlled   by  the   expressed   opinions   of  the   Judges  by 
whom  the   judgment  was  pronounced,  nor  by  the  reasons 
urged  by  them  in  its  support.     In  ascertaining  whether  a 
particular  matter  has  become  7'es  Judicata,  the  reasoning  of 


iLawrenco  v.  Hunt,  10  Wend.  80; 
Jackson  v.  Wood,  3  "Wend.  27;  Wood 
V.  Jackson,  8  Wend.  35;   Hopkins  v. 


Leo.  G  Wheat.  109;  Lewis  &  Nelson's 
Appeal,  G7  Pa.  S.  165. 

sMersereau  c.  Pcarsell,   19  N.  Y. 
108. 

275 


5^258-259 


LAW  OF  JCDGI\IENTS. 


[Chap.  XII. 


the  Court  is  less  to  be  regnrded   than  the  judgment  itself, 
and  the  premises  which  its  existence  necessarily  affirms,  i 

§  259.  Identity  of  Evidence. — The  best  and  most  inva- 
riable test  as  to  whether  a  former  judgment  is  a  bar,  is 
to  inquire  whether  the  same  evidence  will  sustain  both  the 
j)resent  and  the  former  action.  2  If  this  identity  of  evidence 
be  found,  it  will  make  no  diifereuce  that  the  form  of  the 
two  actions  is  not  the  same.^  Thus,  a  judgment  for  de- 
fendant, in  a  suit  for  wheat  cut  and  carried  away,  is  a  bar 
to  an  action  of  trespass,  quare  clausum  fregit,  for  cutting 
and  carrying  away  the  same  wheat,  because  theestoppel  de- 
pends not  on  the  identity  of  the  action,  but  on  the  identity 
of  the  proofs^  Whatever  be  the  form  of  action,  the  issue 
is  deemed  the  same  whenever  it  is  in  both  actions  support- 
ed by  substantially  the  same  evidence.^  If  it  be  so  sup- 
ported, a  judgment  in  one  action  is  conclusive  upon  the 
same  issue  in  any  other  suit,  though  the  cause  of  action  be 
different.*'  But  where,  as  in  Mississippi,  an  action  of  re- 
plevin must  be  brought  within  one  year,  but  an  action  in 
trover  may  be  maintained  at  any  time  within  two  years,  a 
plaintiff,  defeated  in  an  action  of  replevin  because  it  was 
brought  after  one  year  from>  the4ahing,  may  thereafter  sus- 
tain trover  for  the  same  taking.  In  both  cases  the  evidence 
required  to  support  the  plaintiff's  cause  of  action,  though 
in  most  respects  identical,  is  not  entirely  so,  because  in  the 
first  action  proof  of  taking  ivitldn  a  year  is  indispensable, 
while  in  the  second  action  such  proof  is  entirely  immate- 
rial. ''  On  the  other  hand,  if  different  proofs  be  required 
to  sustain  two  actions,  a  judgment  in  one  of  them  is  no  bar 
to  the  other.     If  the  evidence  in  a  second  suit  between  the 


iMcDonough'r,  Succession,  24  La. 
An. 34;  riicquo  v.  Periet,  19  La.  318; 
Hill  V.  Bowman,  14  La.  445;  Buckner 
V.  Calcoto,  G  Cush.  Miss.  432. 

2Kitclioni).  Campbell,  13Wils.304; 
Clegg  u.  Dearden,  12  Q.  B.  576;  Crock- 
ett V.  Ronton,  Dudley,  254;  Hunter  v. 
Stewart,  31  L.  J.  Chanc.  34G;  Taylor 
V.  Castle,  42  Cal.  371;  Cannon  v. 
Brame,  45  Ala.  262;  Percy  v.  Foote, 
36  Conn.  102. 

276 


sRamsey  v.  Herndon,  1  McL.  450; 
Martin  v.  Kennedy,  2  Bos.  &  Pul.  71, 
Duncan  v.  Stokes,  47  Geo.  595. 

4  Johnson  v.  Smith,  8  Johns.  383. 

fi  Fletcher  v.  Campbell,  2  Blacks. 
827;  Outram  v.  Morewood,  3  East. 
34G;  Buckhead  v.  Brown.  5  Sauf.  134. 

cDoty  V.  Brown,  4  N.  Y.  71. 

TJohnsou  V.  White,  13  S.  and  M. 
584. 


Cliap.  XII.]  IDENTITY   OF   EVIDENCE.  gii59 

same  parties  is  sufficient  to  entitle  plaintiff  to  a  recovery, 
liis  riglit  can  not  be  defeated  by  showing  any  Judgment 
against  liim,  in  any  action  where  the  evidence  in  the  pres- 
ent suit  could  not,  if  offered,  have  altered  the  result.  Thus, 
a  judgment  against  a  vendor  suing  for  purchase  money,  be- 
fore it  is  due,  or  against  the  payee  of  a  note,  in  an  action 
against  three,  when  the  note  was  only  the  note  of  two,  is 
no  bar  to  a  subsequent  suit  in  the  first  named  case,  after 
the  money  is  due,  nor  in  the  second  case  upon  the  note,  as 
the  note  of  two,  for  in  neither  of  these  cases  could  evidence, 
amply  sufficient  to  maintain  the  second  action,  have  had 
any  influence  in  the  first.  ^  For  the  same  reason  judgment 
for  defendant,  in  an  action  on  a  note  as  a  contract  to  pay 
money,  is  no  bar  to  a  suit  against  him  on  the  same  note  as  a 
contract  to  pay  money  in  foreign  hills. "  Suit  was  brought 
on  a  promissory  note  alleged  to  be  lost,  and  which  was  de- 
scribed as  payable  0}i  demand,  with  interest  from  date.  The 
defendant  pleaded  a  former  judgment  in  bar.  In  the  pre- 
vious suit  the  note  was  described  as  in  this,  except  that  it 
was  alleged  to  be  payable  one  day  after  date.  It  was  held, 
that,  as  the  issue  joined  in  the  former  suit  would  not  have 
permitted  plaintiff  to  recover  upon  proof  of  a  note  payable 
on  demand,  the  former  judgment  was  not  a  bar. -  An  ac- 
count stated  operates  as  a  change  of  the  original  indebted- 
ness, and  is  in  the  nature  of  a  new  undertaking.  An  action 
upon  it  is  not  founded  on  the  original  items,  but  upon  a 
balance  ascertained  by  the  mutual  understanding  of  the 
parties.^  Therefore  if,  in  an  action  on  a  contract,  the  de- 
fendant introduces  in  evidence  a  judgment  roll  showing  that 
plaintiff  had  previously  commenced  an  action,  setting  forth 
the  same  contract,  and  alleging  that  a  specified  sum  was 
due  as  an  account  stated,  in  which  action  defendant  pre- 
vailed, this  recovery  is  no  bar  to  the  present  suit.  In  de- 
ciding this  point  the  Court  said:  "A  judgment  is  a  bar,  if 
the  cause  of  action  be  the  same,  though  the  form  be  differ- 
ent. The  cause  is  the  same  when  the  same  evidence  will 
support  both  actions;  or,   rather,  the  judgment  in  the  for- 


1  Kirkpatrick  v.  Stingley,  2  Cart. 
273:  N.  E.  Bank  i\  Lewis,  8  Pick.  113; 
U.  S.  V.  Cushmau,   4  Sumner,   426; 


Lawrence  v.  Vernon,  3  Sumner,  20. 
sJones  V.  Tales,  4  Mass.  255. 
3  Patterson  v.  Jones,  27  lud.  4C>7. 

277 


g§259-260 


LAW  OF  JUDGMENTS. 


[Chap.  XII. 


mer  action  will  be  a  bar,  provided  tlie  evidence  necessary 
to  sustain  the  judgment  for  plaintiff,  in  tlie  present  action, 
wo  aid  have  authorized  a  judgment  for  him  in  the  former. 
The  present  action  would  have  been  sustained  upon  proof 
of  a  contract  and  the  performance  on  the  part  of  plaintiff, 
and  non-payment  by  the  defendants.  This  jDroof  would 
not  have  sustained  the. former  action.  Therefore  the  judg- 
ment is  not  a  bar."^ 

§  260.  Merits. — The  estoppel  arising  from  a  judgment 
or  decree  is  not  odious,  because  it  is  confined  to  those  points 
which  either  were  in  fact  litigated  and  determined  between 
the  parties,  or  which  were  determined  in  the  absence  of  any 
actual  contest,  but  not  until  after  a  full  legal  opportunity 
was  given  both  parties  to  make  such  contest  as  they  might 
deem  proper.  It  follows  from  this  that  no  judgment  can 
be  available  as  an  estoppel,  unless  it  is  a  judgment  on  the 
merits. "  But  an  occasional  difficulty  may  arise  in  deciding 
what  is  a  judgment  on  the  merits,  as  the  term  is  generally 
employed  by  judges  and  lawyers.  To  create  such  a  judg- 
ment, it  is  by  no  means  essential  that  the  controversy  be- 
tween plaintiff  and  defendant  be  determined  "on  the  mer- 
its," in  the  moral  or  abstract  sense  of  those  words.  It  is 
sufficient  that  the  status  of  the  action  was  such  that  the 
parties  might  have  had  their  law-suit  disposed  of  according 
to  their  respective  rights,  if  they  had  presented  all  their 
evidence,  and  the  court  had  properly  understood  the  facts 
and  correctly  applied  the  law.  ^  But  if  either  party  fail  to 
present  all  his  proofs,  or  improperly  manage  his  case,  or 
afterward  discover  additional  evidence  in  his  behalf,  or  if 
the  court  find  contrary  to  the  evidence,  or  misapply  the  law, 


1  Taylor  v.  Castle,  42  Cal.  371.  So 
a  note  offered  iu  evidence,  in  an  ac- 
tion on  an  account  stated,  and  reject- 
ed because  not  admissible  in  that  form 
of  action,  may  be  subsequently  re- 
covered upon  an  action  thereon  in 
proper  form.  Lindell  v.  Leggett,  1 
Mo.  432. 

sTaylor  v.  Larldn,  12  Mo.  103;  Bell 
I'.  Hoagland,  15  Mo.  3G0;  Houston  v. 
Musgrove,  35  Tex.  594. 
278 


3  Hughes  V.  United  States,  4  Wall. 
232;  Lore  v.  Truman,  10  Ohio  S.  45; 
Birch  V.  Funk,  2  Met.Ky.  544;  John- 
son v.  White,  13  S.  &  M.  584;  Agnew 
V.  McElroy,  10  S.  &  M.  552;  Brackett 
V.  Hoitt,  20  N.  H.  257;  Van  Vliet  v. 
Olin,  1  New.  495;  Wilbur  v.  Gilmore, 
21  Pick.  250;  Keene  v.  Clark,  5  Eob. 
N.  Y.  38;  Kcenan  v.  Miller,  2  Kelly, 
Ga.  325;  Rogers  v.  Higgins,  57  111. 
244. 


Chap.  XII.]  MERITS.  ^2G0 

iu  all  tliese  cases  tlie  judgment,  until  corrected  or  vacated 
in  some  appropriate  manner,  is  as  conclusiA'e  upon  the  par- 
ties as  though  it  had  settled  their  controversy  in  accordance 
with  the  principles  of  abstract  justice.  Frequent  instances 
occur  tending  to  convince  us  of  the  unwelcome  truth,  that 
many  judgments,  which  in  law  are  regarded  as  being  "on 
the  merits,"  are,  in  fact,  repugnant  to  any  disposition  of 
the  rights  of  the  parties  "on  the  merits,"  as  those  v\'Ord3 
would  be  employed  in  relation  to  the  ordinary  affairs  of 
men.  If,  in  an  action  on  a  judgment,  the  plea  of  nul  del 
record  be  interposed,  and  the  plaintiff  fail,  owing  to  a  de- 
fect in  the  certificate,  he  is  estopped  from  afterward  assert- 
ing the  judgment,  though  its  validity  was  free  from  doubt.  ^ 
Assignees  of  a  bankrupt,  failing  in  a  suit  because  they  can- 
not prove  an  act  of  bankruptcy  sufficiently  early,  cannot 
afterward  maintain  an  action  for  the  same  demand,  though 
they  secure  evidence,  for  want  of  which  they  suffered  the 
former  defeat. "  A  former  suit,  in  which  the  defendant  re- 
covered on  the  erroneous  ground  that  the  cause  of  action 
had  not  then  accrued,  is  a  bar  to  a  further  prosecution,  s  A 
plaintiff  sued  on  a  recognizance,  but  failed  in  his  suit  be- 
cause he  did  not  prove  that  the  recognizance  had  been  filed 
as  required  by  statute.  It  was  held  that  the  judgment  pre- 
cluded him  from  afterward  alleging  or  proving  that  the 
filing  existed  prior  to  the  former  suit.-^  Certain  justices, 
having  jiirisdiction  to  act,  allowed  several  accounts  without 
giving  them  any  particular  consideration,  supposing  that 
several  importan  t  matters  of  law  were  involved,  and  that 
an  appeal  lay  to  the  quarter  sessions.  But  it  was  decided 
that  no  such  appeal  could  be  taken.  The  justices,  after  the 
decision,  were  anxious  to  hear  the  matter  on  the  merits.  A 
mandamus  being  applied  for  to  compel  them  to  do  so.  Lord 
Denman,  C.  J.,  said:  "We  think  we  have  no  power  to  issue 
this  mandamus  to  the  justices  to  hear  and  decide  upon  the 
allowance  of  accounts,  they  having  already  done  so,  though 
under  a  mistaken  notion  that  an  appeal  lay  to  the  sessions, 
and  though  they  are  now  anxious  to  enter  on  the  merits  of 
the -case.     To  unravel  the  grounds  and  motives  which  may 


iFoltz  V.  Prouse,  15  111.  431. 

2  Stafford  v.  Clark,  1  Car.  &  P.  403. 


3 Morgan  v.  Plumb,  9  Wend.  287. 
4  People  V.  Smith,  51  Barb.  360. 

279 


g^2G0-261 


LAW  OF  judg:ments. 


[Chap.  XIT. 


have  led  to  the  determination  of  a  question  once  settled  by 
the  jurisdiction  to  which  the  law  has  referred  it,  would  be 
extremely  dangerous;  but  many  authorities  prove  that  it  is 
beyond  our  own  competency,  and  there  is  none  to  the  op- 
posite effect."  ^ 

§  2G1.  Nonsuit.  Judgments  of  nonsuit,  of  iiol.  pros, 
of  nolle  prosequi,  of  dismissal,  and  of  discontinuance,  are 
exceptions  to  the  general  rule,  that  when  the  pleadings,  the 
court  and  the  parties  are  such  as  to  permit  of  a  trial  on  the 
merits,  the  judgment  will  be  considered  as  final  and  conclu- 
sive of  all  matters  which  could  have  been  so  tried. "  A  non- 
suit "is  but  like  the  blowing  out  of  a  candle,  which  a  man 
at  his  own  pleasure  may  light  again. "^  Under  no  circum- 
stances will  such  a  judgment  be  deemed  final,  whether  en- 
tered before  or  at  the  trial.  ^  That  such  judgment  was  en- 
tered by  the  court,  upon  an  agreed  statement  of  facts,  Avill 
not  give  it  any  force  as  an  estoppel.^  A  judgment  of  non- 
suit was  entered  against  plaintiff  on  a  certain  count  of  his 
complaint,  for  not  replying  to  a  special  plea  within  the  time 
required  by  the  court.  The  effect  of  the  judgment  was  held 
to  be  to  turn  plaintiff  out  of  court,  and  to  place  him,  as  to 
such  count,  as  though  it  had  never  been  filed."  The  dis- 
missal of  a  claim  against  an  insolvent  estate,  for  want  of 
proof,  has  the  same  effect  in  Louisiana  as  a  nonsuit,  and 
will  not  support  the  plea  of  res  judicata.'^  If,  upon  the  trial 
before  a  justice  of  the  peace,  he  expresses  an  opinion 
against  the  plaintiff,  who  thereupon  withdraws  his  suit  and 
pays  the  costs,  this  is  but  a  dismissal  of  his  suit,  not  affect- 
ing any  future  action.^     Parol  evidence  will  not  beadmit- 


1  Eegina  V.  Yorksliire,  1  Ad.  &  El. 
N.  S.  G25. 

■^Harvey  v,  Large,  51  Barb.  222; 
Audubon  v.  Excelsior  Ins.  Co.,  27  N. 
y.  21G;  The  People  v.  Vilas,  3G  N.  Y. 
400;  Harrison  u.  Wood,  2  Diier.  50; 
Mercliauts'  Bank  Ass'n  v.  Mariposa 
Co.,  7Bobb.  225. 

'  March  on  Arbitraments,  215,  cited 
in  Clapp  (•.  Thomas,  5  Allen,  158. 

^Foster  v.  Wells,  4  Tex.  101;  Pil- 
lo^Y  V.  Elliott,  25  Tex.  Supp.  322;  Tay- 


lor V.  Larkin,  12  Mo.  103;  Greely  v. 
Smith,  1  W.  &  M.  181. 

5  Homer  v.  Brown,  IG  How.  U.  S. 
331;  Bridge  v.  Sumner,  1  Pick.  371; 
Morgan  v.  Bliss,  2  Mass.  113;  Derby 
V.  Jacques,  1  Cliiiord,  425;  linox  v. 
Waldoborough,  5  Me.  185. 

G  Howes  V.  Austin,  35  111.  39G. 

'  Alliuet  V.  Creditors,  15  La^  Aiu 
130. 

8  Jones  u.  Walker,  5  Yerg.  42S, 


Cliap.  XII.]  NONSUIT.  g2Gl 

ted  to  show  that  a  cause  was  tried  upon  the  merits,  but  that 
the  justice  entered  a  judgment  of  nonsuit  because  he  sup- 
posed he  could  not  enter  any  other.  ^  In  New  York  it  is 
the  duty  of  a  justice  of  the  peace,  before  whom  a  cause  has 
been  tried  and  submitted,  to  determine  it.  He  can  not 
evade  this  duty  by  entering  a  judgment  of  nonsuit.  If  he 
attempt  to  do  so,  his  judgment  may  be  reversed  upon  ap- 
peah^  The  prosecution  of  an  appeal  in  such  a  case  seems 
to  be  an  idle  ceremony;  because  the  defendant  is  entitled  to 
treat  the  judgment  as  a  final  adjudication  upon  the  merits. 
^'If  the  cause  be  submitted  to  the  justice,  and  ho  take  time 
to  make  iip  his  judgment,  the  plaintiff  can  not  then  volun- 
tarily submit  to  a  nonsuit.  The  case  is  suh  judice  upon  the 
merits,  and  must  be  disposed  of  upon  the  merits;  and  I  ap- 
prehend it  is  not  then  in  the  power  of  the  justice  to  non- 
suit the  plaintiff.  His  determination  of  the  case  is  equiva- 
lent to  a  verdict  of  a  jury  and  a  judgment  thereon;  and, 
although  he  may  call  his  judgment  a  judgment  of  nonsuit, 
and  enter  it  accordingly,  if  the  record  or  minutes  of  the 
trial  show  that  it  was  rendered  after  the  cause  was  submit- 
ted to  him,  and  after  he  took  time  to  deliberate,  and  not  at 
the  trial,  it  will  be  considered  a  judgment  for  the  defendant, 
and  will  be  a  bar  to  any  subsequent  action."  ^  But  it  seems 
to  be  well  established,  in  the  same  State,  that  the  fact  that 
the  cause  was  submitted  for  judgment,  must  appear  from 
the  docket  and  minutes  of  the  justice;  and  that  when  he  has 
entered  a  judgment  of  nonsuit,  it  is  not  competent  for  the  pur- 
pose of  showing  that  the  decision  was  not  upon  the  merits 
to  put  him  upon  the  stand  as  a  witness,. and  have  him  state  the 
circumstances  preceding  the  entry  of  the  judgment.  "It 
would  be  dangerous  to  permit  an  inquiry  into  the  evidence 
and  proceedings  of  a  trial  before  the  justice,  to  show  that  the 
kind  of  judgment  rendered  by  him  was  not  such  as  he  ought 
to  have  rendered,  and  to  give  effect  to  it  as  it  should  have 
been,  rather  than  as  it  is."  *  A  judgment  was  reversed  upon 
appeal  to  the  Supreme  Court,  and  the  cause  remanded  for 

1  Biintnall  v.  Foster,  7  "Wend.  103.1      3  Elwell  v.  McQueen,  10  Wend.  522; 

2  Young  V.  Hubbell,  3  Johns.  430;  Gillilau  v.  Spratt,  S  Abb.  Pr.  N.  S.  15. 
Hess  V.  Beekman,  11  Johns.  459;  Pe-  4  Brintnall  c.  Foster,  7  Wend.  104. 
ters  V.  Diossy,  3  E.  D.  Smith,  115. 

281 


g§2Gl-i:Gla  LAW  OF  JUDGMENTS.  [Chap.  XII. 

further  proceedings.  The  plaiutiff,  afterward  becoming 
nonsuit,  was  allowed  to  bring  another  action,  on  the  ground 
that  the  rule  in  reference  to  nonsuits  was  not  altered  by 
the  cases  having  been  in  the  Appellate  Court.'  "A.  dis- 
missal or  nonsuit,  not  determining  the  rights  of  the  x^ar- 
ties,  cannot  support  the  plea  of  res  adjudicata.  Nor  will 
the  reasoning  and  opinion  of  the  court  upon  the  subject, 
on  the  evidence  adduced  before  it,  have  the  force  and  effect 
of  a  thing  adjudged,  unless  the  subject  matter  be  definitely 
disposed  of  by  the  judgment."  -  "At  common  law  there 
is  no  form  of  an  entry  in  the  books  of  a  judgment  dismiss- 
ing an  action.  Every  judgment  against  a  plaintiff  is  either 
upon  a  retraxit,  non-pros,  nonsuit,  nolle  prosequi,  discontin- 
uance, or  a  judgment  on  an  issue  found  by  jury  in  favor  of 
defendant,  or  upon  demurrer.  The  inducements  or  prelim- 
inary recitals  in  these  several  kinds  of  judgment  are  variant, 
but  the  conclusion  in  each  is  always  the  same;  it  is  as  fol- 
lows :  '  Therefore  it  is  considered  by  the  court  that  plaintiff 
take  nothing  by  his  writ,  and  that  the  defendant  go  without 
day,  and  recover  of  plaintiff  his  costs.'  Of  these  several 
judgments,  none  but  a  retraxit,  or  one  on  the  merits,  will 
bar  subsequent  actions."  ^ 

g  2G1«.  The  Defendant's  Motion  for  a  Nonsuit  is  a 
Waiver  of  his  right  to  have  judgment  upon  the  merits,  and 
also  of  his  right  to  litigate  new  matter  set  up  in  his  answer, 
and  upon  w4iich  he  has  demanded  affirmative  relief.  In  an 
action  to  quiet  title,  the  court,  on  motion  of  defendant,  or- 
dered a  nonsuit.  He  then  offered  to  prove  the  new  matter 
alleged  by  him,  but  the  court  refused  to  hear  the  evidence. 
This  refusal  having  been  made  a  ground  of  an  appeal,  was 
sustained  by  the  Appellate  Court  on  the  following  grounds: 
"A  defendant,  conceiving  that  the  plaintiff  has  failed  to 
prove  his  case,  may  waive  a  motion  for  a  nonsuit,  and  pro- 
ceed to  prove  his  own  case,  and  have  judgment  on  the 
merits.  But  if  he  move  for  a  nonsuit,  and  the  nonsuit  be 
granted,  he  cannot  proceed  and  have  judgment  on  the  mer- 
its; because,  by  reason  of  the  nonsuit,  the  plaiutiff  is  vir- 

1  noll.-ud  V.  Hatch,  15  Ohio  S.  4G4.        3 Bond  v.  McNider,  3  Iredell,  440. 
sFisk  V.  Tarker,  14  La.  Au.  491. 

282 


Cliap.  XII.]  DISMISS.iL  BY  AGREEMENT.  261a-262 

tually  out  of  court.  A  nonsuit  granted  on  the  motion  of 
tlie  defendant  is  equivalent,  in  its  operation  on  the  action, 
to  a  dismissal,  with  the  consent  of  the  defendant."^ 

§  262. — Dismissal  by  Agreement. — Recently  the  Su- 
preme Court  of  California  considered  the  effect  of  a  judg- 
ment of  dismissal,  entered  by  agreement.  Such  a  judg- 
ment "was  compared  to  that  of  a  retraxit  at  common  law,  and 
the  court  were  of  the  opinion  that,  like  a  retraxit,  "such 
a  dismissal,  when  had  by  such  consent,  amounts  to  the  open 
and  voluntary  renunciation  of  a  suit  pending."  The  court 
adopted  the  language  of  Chief  Justice  Robinson,  of  Ken- 
tucky, as  follows:  "It  has  frequently  been  decided  by  this 
court,  that  the  legal  deduction  from  a  judgment  dismissing 
a  suit  'agreed'  is,  that  the  parties  had,  by  their  agreement, 
adjusted  the  subject  matter  of  the  controvers}^  in  that  suit; 
and  the  legal  effect  of  such  a  judgment  is,  therefore,  that  it 
will  operate  as  a  bar  to  any  other  suit  between  the  same 
parties,  on  the  identical  cause  of  action  then  adjusted  by 
the  parties,  and  merged  in  the  judgment  therein  rendered, 
at  their  instance,  and  in  consequence  of  their  agreement. "^ 
These  decisions  are  not  intended  to  conflict  with  the  rules 
universally  understood  as  applying  to  voluntary  dismissal 
in  the  absence  of  an  agreement.  To  avoid  all  misappre- 
hension on  this  subject,  the  court  in  California  said: 
"We  are  not  to  be  understood  as  holding  that  a  mere  dis- 
missal of  an  action  by  the  plaintiff  under  the  statute,  and 
without  any  agreement  upon  his  part  to  do  so,  is  to  be  held 
to  constitute  a  bar  to  its  renewal,  nor  that  a  judgment  of 
nonsuit,  even  entered  by  consent,  would  have  that  effect, 
but  onl}^  that  ii  judgment  of  dismissal,  when  based  upon  and 
entered  in  pursuance  of  the  agreement  of  the  parties,  must 
be  understood  in  the  absence  of  anything  to  the  contrary 
expressed  in  the  agreement,  and  contained  in  the  judgment 
itself,  to  amount  to  such  an  adjustment  of  the  merits  of  the 
controversy,  by  the  parties  themselves,  through  the  judg- 


1  Wood  V.  namond,  42  Gal.  6-14. 

2  Bank  of  Commonwealth  v.  Hop- 


kins, 2  Dana,  395.     See  also  Jarboe  v. 
Smith,  10  B.  ilonr.  257. 

2S3 


g§2G2-264  LAW  OF  judgments.  [Chap.  XII. 

ment  of  the  court,   as  will  constitute  a  defense  to  another 
action  afterward  brought  ui^on  the  same  cause  of  action. "i 

g  263.  Judgments  not  on  Merits.— Mr.  Smith,  in  his 
Leading  Cases,  divides  those  judgments  which  are  not  a  bar 
to  another  action,  because  not  on  the  merits,  into  the  fol- 
lowing classes: 

"  1st.     Where  the  plaintiff  fails  for  want  of  jurisdiction  in 
the  court  to  hear  his  complaint,  or  to  grant  him  relief. 

2d.     Where  he  has  misconceived  his  action. 

3d.  Where  he  has  not  brought  the  proper  parties  before 
the  court. 

4th.  Where  the  decision  was  on  demurrer,  and  the  com- 
plaint in  the  second  suit  sets  forth  the  cause  of  action  in 
proper  form. 

5th.     Where  the  first  suit  was  prematurely  brought. 

6th.  Where  the  matter  in  the  first  suit  is  ruled  out  as 
inadmissible  under  the  pleadings.  ^ 

§  264.  Want  of  Jurisdiction. — The  first  of  the  above 
subdivisions  should  include  not  merely  all  those  cases  dis- 
missed for  want  of  jurisdiction,  but  also  all  cases  in  which, 
though  a  court  assumes  to  dispose  of  a  suit  on  the  merits, 
the  judgment  is  void  for  w^ant  of   authority  in  the  court 

making  it.  ^  • 

In  Massachusetts,  a  widow  may  present  her  petition  to 
the  Probate  Court,  to  have  her  homestead  set  off  from  the 
rest  of  the  estate  of  her  deceased  husband.  If,  however, 
the  heirs  dispute  her  claim,  the  court  is  ousted  of  all  fur- 
ther jurisdiction  in  the  matter,  and  the  issue  formed  be- 
tween her  and  the  heirs  must  be  tried  in  some  other  court. 
But  a  widow  having  presented  her  petition,  and  the  heirs 
having  filed  their  opposition,  the  Probate  Court  proceeded 
to  hear  the  matter  as  though  it  had  jurisdiction;  and  after 
a  trial,  in  which  all  the  parties  in  interest  participated,  en- 
tered a  decree  denying  the  petition,  on  the  ground  that  the 
petitioner  had  no  homestead  right.  In  proceedings  before  a 
court  of  competent  jurisdiction,  she  afterward  sought  to  as- 

iMerritt  V.  Campbell,  S.  C.  of  Cal.  I      sBlin  v.  Campbell,  14  Johns.  432; 
filed  July  9,  1872.  Offut  v.  Cffut,  2  H.  &  G.  178;  Schin- 

sSmith's  Leading  Cases,  p.  073.       |del  v.  Siiman,  13  Md.  310. 
284 


Cliap.  XII.]        IN  MIsco^'CEI^^:D  actions.  §^264-2G5 

sert  her  claim  to  the  homestead.  It  was  opposed  on  the 
ground  that,  by  the  decree  of  the  Probate  Court,  her  rights 
had  been  terminated.  But  the  Supreme  Court,  in  consid- 
ering the  effect  of  the  decree,  said:  "It  is  then  further 
urged  that,  if  this  be  so,  yet  it  is  not  competent  for  the 
tenant,  who  was  the  petitioner  to  the  Probate  Court,  to  set 
up  want  of  jurisdiction  in  reply  to  the  plea  in  bar  in  this 
suit,  even  if  it  might  have  availed  her  in  the  Probate  Court, 
or  on  an  appeal.  But  we  think  this  an  erroneous  view  of 
the  matter,  and  that  these  judgments  of  the  Probate  Court 
are  to  be  treated  as  wholly  void.  They  would  have  been 
so  if  in  her  favor,  and  they  ought  to  have  no  more  effect, 
having  been  against  her."  ^  While  a  court  may  have  juris- 
diction of  the  parties  to  the  action,  and,  for  certain  pur- 
poses or  to  a  certain  extent,  may  be  authorized  to  determine 
some  of  the  issues  in  controversy,  yet  if  it  go  beyond  the 
bounds  of  its  authority,  its  decision  as  to  these  matters  not 
within  its  jurisdiction  can  not  acquire  the  force  of  res  judi- 
cata. - 

§  265.  In  Misconceived  Actions. — The  second  subdi- 
vision embraces  a  great  number  of  cases.  The  exception 
which  takes  these  cases  out  of  the  general  rules  in  relation 
to  estoppel,  is  a  very  important  one,  saving  the  plaintiff 
from  the  loss  of  his  claim,  through  any  error  of  judgment 
on  the  part  of  his  attorney  in  determining  what  form  of  ac- 
tion is  best  suited  for  the  enforcement  of  the  plaintiff's 
rights.^  Wherever  the  adoption  of  a  Code  of  Civil  Pro- 
cedure has  obviated  the  necessity  of  choosing  between  dif- 
ferent forms  of  action,  the  number  of  cases  in  which  plaint- 
iffs will  be  obliged  to  invoke  the  protection  of  this  exception 
will  be  much  less  than  if  the  common  law  rules  Avere  still 
in  force.  If,  by  mistake,  plaintiff  bring  trespass  instead  of 
trover,  and  judgment  be  given  against  him  on  that  account, 
the  defendant  can  not,  successfully,  assert  it  as  a  bar  to  a 
subsequent  action  of  trover.*  If  a  defendant,  in  an  action 
against  him  on  a  promissory  note,   obtain  judgment  on  a 


Olercier  r.  Chace,  9  Allen,  '2i2. 
2  Houston  v.  Musgrove,  35  Texas, 
591. 


3 Foster  v.  Wells,  4  Texas,  101;  Liv- 
ermore  v.  Herschell,  3  Pick.  33;  Wy- 
man  v.  Dorr,  5  Greenl.  185. 

4ChittyPl.  198. 

285 


H^MJ-j 


§ §265-207  LAW  OF  JUDGMENTS.  [Chap.  Xn. 

plea  of  infancy,  the  note  being  given  by  liim  for  a  chattel 
which  he  had  obtained  through  fraud,  and  had  refused  to 
deliver  to  the  owner  on  demand,  an  action  in  fort  may  still 
be  maintained  for  the  conversion  of  the  chattel.  *  A  plaint- 
iff who,  bringing  an  action  of  replevin  for  a  sum  of  money, 
is  defeated  in  that  action  because  it  lies  to  recover  only 
things  existing  in  specie,  is  not  estopped  by  the  judgment 
against  him  from  prosecuting  a  subsequent  action  as  upon 
the  contract,  for  the  same  sum  of  money.  The  former  judg- 
ment is  conclusive  that  the  defendant  did  not  have  the  spe- 
cific money;  but  it  does  not  determine  whether  he  is  liable 
for  money  had  and  received.  ^ 

§  266.  Want  of  Proper  Parties.  The  third  subdivision 
is  applicable  to  cases  in  which  the  want  of  proper  parties, 
either  plaintiff  or  defendant,  is  apparent  from  an  inspection 
of  the  record;  and  also  to  cases  where,  though  the  proper 
parties  apparently  come  before  the  court,  one  or  more  of 
them  have  no  capacity  to  sue.^ 

§  267.  Judgments  on  Demurrer. — A  judgment  on  de- 
murrer to  the  plaintiffs  complaint  is  conclusive  of  every- 
thing necessarily  determined  by  such  judgment.  If  the 
court  decides  that  plaintiff  has  not  stated  facts  sufficient  to 
constitute  a  cause  of  action,  or  that  his  complaint  is  other- 
wise liable  to  any  objection  urged  against  it  upon  demurrer, 
such  decision  does  not  extend  to  any  issue  not  before  the 
court  on  the  hearing  of  the  demurrer.  It  leaves  the  plaint- 
iff at  liberty  to  present  his  complaint  in  another  action,  so 
corrected  in  form  or  in  substance  as  to  be  no  longer  vulner- 
able to  the  attack  made  on  it  in  the  former  suit.*  But  a 
judgment  upon  demurrer  may  be  a  judgment  on  the  merits. 
If  so,  its  effect  is  as  conclusive  as  though  the  facts  set  forth 
in  the  complaint  were  admitted  by  the  parties  or  established 


iWalker  v.  Davis,  I. Gray,  506. 

sSager  v.  Blain,  44  N.  Y.  445. 

SKobbins  v.  Wells,  1  Rob.  N.  Y. 
GGG;  Corl  v.  Eiggs,  12  Mo.  430; 
Wheeler  v.  Ruckman,  7  Rob.  447;  S. 
C.  35  How.  Pr.  350. 

4Robinsoii  u.  Howarrl,  5  Cal.  423; 

2SG 


Gerrish  v.  Brewer,  6  Minn.  53;  Gil- 
man  V.  Rives,  10  Pet.  298;  Nickelson 
V.  Ingram,  24  Texas,  C30;  Birch  v. 
Funk,  2  Met.  Ky.  544;  Wells  t\  Moore, 
49  Mo.  229;  Spicer  v.  U.  S.,  5  Nott  & 
H.  34. 


Chap.  XII.]  PEEMATURE  SUITS.  §.^267-268 

by  evidence  submitted  to  the  court  or  jury.  No  subsequent 
action  can  be  maintained  b}^  the  plaintiff,  if  the  judgment 
be  against  him,  on  the  same  facts  stated  in  the  former  com- 
plaint.' If  any  court  err  in  sustaining  a  demurrer  and  en- 
tering judgment  for  defendant  thereon,  when  the  complaint 
is  sufficient,  the  judgment  is  nevertheless  "on  the  merits." 
It  is  final  and  conclusive  until  reversed  on  appeal.  Until 
then  the  plaintiff  cannot  disregard  it  and  maintain  another 
action.  The  effect  of  a  judgment  still  in  force  is  never 
diminished  on  account  of  any  mistake  of  law  on  which  it  is 
founded.-  A  judgment  in  favor  of  defendant  on  demurrer 
to  an  answer,  is  a  bar  to  a  subsequent  suit  for  the  same 
cause  of  action.  ^  If  a  demurrer  be  put  in  to  a  good  plea 
in  bar,  it  will  estop  the  plaintiff,  though  his  declaration  bo 
defective,  because  his  demurrer  confesses  the  grounds  of 
defense.*  Although  an  answer  has  been  filed,  yet  if  judg- 
ment be  entered  against  plaintiff  upon  the  pleadings  for  de- 
fects in  his  complaint,  this,  like  judgment  upon  demurrer, 
is  no  bar  to  a  subsequent  suit,  in  which  the  cause  of  action 
is  sufficiently  set  forth.  ^ 

^  268.  Premature  Suits. — That  a  judgment  obtained 
for  the  reason  that  an  alleged  demand  is  not  yet  due,  is  no 
bar  to  an  action  brought  on  the  same  demand,  after  it  has 
fallen  due,  is  a  universally  acknowledged  rule,  applicable 
to  every  case  in  which  a  judgment  can  be  rendered  against 
any  one  because  he  has  undertaken  to  assert  a  claim  which 
has  yet  to  ripen  into  a  cause  of  action.  A  suit  upon  a  bond 
before  condition  broken,  iu  which  plaintiff  fails,  on  that 
account,  to  recover,  is  no  bar  to  any  action  brought  against 
the  same  defendant  after  condition  broken.  ^  When  a  ven- 
dee brought  an  action  to  recover  money  paid  by  him  as  pur- 
chase money  for  a  tract  of  laud,  and  failed  because  he  had 
not  yet  been  evicted,  he  was  allowed  to  maintain  a  subse- 
quent action,  upon  showing  his  eviction   since   the  former 


i  Clearwater  v.  Meredith,  1  "Wall.  25; 
Aurora  City  v.  West,  7  Wall.  82;  Now- 
lan  V.  Geddes,  1  East.  G34;  Bouchaud 
v.  Dias,  3  Denio,  24i;  Goodrich  v. 
City,  5  Wall.  573;  Perkins  v.  Moore, 
IG  Ala.  17. 


sVallandingham  v.  Eyan,  17  111.  25. 
3  Wilson  V.  Ray,  2J:  lud.  156. 
4Lampen*i'.  Kedgewin,  1  Mod.  207. 
5Gerrish  v.  Tratt,  G  Minn.  53. 
GMcFarlanc   v.  Cushman,  21  Wis. 
401 

287 


§g2GS-2G9  LAW  OP  JUDGMENTS.  [Cliap.  XII. 

suit.  ^  If  a  suit  be  brought  for  several  cTemands,  some  of 
which  are  due,  and  others  of  wliich  are  not  due,  and  a  gen- 
era] verdict  be  given  for  the  plaintiff,  he  may  show  in  a  sec- 
ond suit,  for  the  demands  not  due  at  the  trial  of  the  first 
suit,  that,  though  presented  to  the  court  ov  jury,  they  were 
disallowed  because  not  yet  due.^  If,  from  the  record  in 
the  first  suit,  it  appears  that  the  demands  were  prematurely 
sued  upon,  it  will  be  presumed  that  they  were  on  that  ac- 
count rejected  by  the  jury,  and  that  they  form  no  part  of 
the  judgment.  But  it  may  bo  shown  that  the  demand, 
though  not  due,  was  not  objected  to  by  the  defendants,  and 
was  allowed  by  the  jury.'  tJnder  the  Code  the  same  an- 
swer may  present  permanent  defenses  along  Avith  those  of  a 
temporary  nature.  Thus,  to  an  action  upon  a  draft,  the  de- 
fendant may  answer:  "first,  that  the  draft  is  usurious;  sec- 
ond, that  it  is  paid;  and  third,  that  the  suit  is  premature, 
because  defendant  has  not  been  allowed  days  of  grace." 
If  this  action  should  proceed  to  trial,  resulting  in  a  finding 
ill  favor  of  the  defendant  upon  each  of  these  issues,  fol- 
lowed by  a  general  judgment  in  his  favor,  such  judgment 
will  be  as  conclusive  in  relation  to  the  permanent  defenses 
of  payment  and  usury  as  upon  the  temiMrarij  defense  in  re- 
lation to  the  days  of  grace.  If  the  plaintiff  should  believe 
that  the  findings  are  correct  as  to  the  temporary,  and  incor- 
rect as  to  the  permanent,  defenses,  he  must,  to  preserve  his 
rights,  take  such  proceedings  as  will  enable  him  to  over- 
throw the  findings  upon  the  permanent  defenses,  and  to 
obtain  a  judgment  without  prejudice  to  a  subsequent  ac- 
tion.* 

?/  2G9.  Claims  not  Admissible. — Any  claim  of  the  plaint- 
iff," which  is  offered  by  him,  but  is  ruled  out  because  not 
admissible  under  his  pleadings,  is,  if  it  loere  not  admissible, 
to  be  afterward  treated  as  though  it  had  not  been  offered.  ^ 
Not  being  involved  in  the  issues,  it  cannot  become  res  judi- 
cata, unless,  without  objection  by  the  defendant,  or  through 


1  Hurst  V.  Means,  2  Snoecl.  51G._ 
2Kaue  V.  Fisher,  2  Wafts,  24G;  Bull 
r..Hoplcius,  7  Johns.  22. 

3 Grouse  v.  Miller,  10  S.  &  R.  155; 

288 


Kane  v.  Fisher,  2  Watts,  24G;  Yalclon 
V.  Ilubburd,  Com.  Eep.  321. 

4  Sheldon  v.  Edwards,  35  N.  Y.  279. 

fi Baker  v.  Eand,  13  Barb.  152;  Har- 
ding V.  Hale,  2  Gray,  399. 


Chai3.  XIT.]    DISMISS.VL  of  a  bill  in  equity,        §2269-270 

error  of  the  court,  it  is  allowed  and  becomes  a  part  of  the 
judgment.  If,  however,  the  court  erroneously  rejects  a 
claim  as  inadmissible,  when  it  should  be  admitted,  this 
error  must  be  corrected  upon  appeal ;  and,  until  reversed, 
the  judgment  is  conclusive  against  the  rejected  claim. 
Where  a  defendant  in  scire  facias,  on  nul  tiel  record  pleaded, 
prevailed  because  the  scire  Jacia^  stated  the  judgment  to  be 
against  James  II.  Green,  and  the  record  offered  was  against 
James  Green,  it  was  held  that  this  was  no  bar  to  a  second 
scire  facias.  ^  So  an  acquittal  upon  an  indictment  charging 
the  burning  of  the  barn  of  Josiah  T.,  is  no  bar  to  a  prose- 
cution for  burning  the  barn  of  Josias  T.  - 

g  270.     Dismissal  of  a  Bill  in  Equity. — ''The  dismissal 
of  a  bill  in  chancery  stands  nearly  on  the  same  footing  as  a 
judgment  at  law,   and  will  be  presumed  to  be  a  final  and 
conclusive  adjudication  on  the  merits,  whether  they  were  or 
were  not  heard  and  determined,  unless  the  contrary  is  ap- 
parent on  the  face  of  the  pleadings,  or  in  the  decree  of  the 
court."  ^     Only  one  case  has  come  under  our  observation, 
in  which  the  decree  dismissing  a  bill  has  not  been  consid- 
ered as  necessarily  final  and  conclusive,-*  while  fche  cases 
are  numerous  sustaining  the  view  that  such  dismissal  is  a 
bar  to  any  subsequent  bill,  unless  it  appears  od  the  record 
to  have  been  made  without  prejudice,   or  otherwise  not  on 
the  merits.^     If,  in  fact,  a  decree  be  rendered  dismissing  a 
bill,  because  of  some  defect  in  the  pleadings,  or  for  want 
of  jurisdiction,  or  because  complainant  has  an  adequate 
remedy  at  law,  or  on  any  other  ground  not  involving  the 
merits,  it  is  the  general  practice,  both  in  England  and  in 
the  United  States,  to  state  in  the  decree  that  the  dismissal 
is  without  prejudice;  and  the  omission  of  these  words  is 
an  error  which  will  be  corrected  upon  appeal. "     A  dismissal 


'Benton  v.  Duffy,  Cam.  &  Norw.  j  t  Wright  v.  DeKlyne,  1  Pet.  C.  C. 
98.  1 199. 

2  Commonwealth  v.  Mortimer,  2  5  Kelsey  u.  Murphy,  26  Penn.  S.  78; 
Virg.  Cases,  325.  {Perine  v.  Dunn,   4  Johns.  Ch.   142; 

3  Smith's  Leading  Cases,  VoL  2,  p.  Neafie  v.  Neafie,  7  Johns.  Ch.  1; 
667;  Wilcox  v.  Balger,  6  Ohio,  406;'Footo  v.  Gibbs,  1  Gray,  412;  Parrish 
Taylor  v.  Yarborough,  13  Gratt.  183.  u.  Ferris,  2  Black,  U.  S.  606. 

'      6Duraut  u.  Essex  Co..  7  Wall.  107. 

(19)  289 


^270  LAW   OF  JUDGMENTS.  [Chap.  XII. 

of  a  libel  for  divorce  in  Massachusetts  stands  on  the  same 
footing  as  the  dismissal  of  a  hill  in  equity;  and,  unless  it 
appears  on  its  face  to  be  made  "  without  prejudice,"  will  be 
a  bar   to  another  libel   for  the  same  cause.'      Where  the 
plaintiff  did  not  in  his  bill  show  any  interest  or  liability, 
requiring  the  aid  or  interference  of  a  court  of  equity,  and 
it  was  dismissed  on  that  ground,  he  will  not  be  estopped 
from  bringing  a  new  bill  stating  matters  sufficient  to  author- 
ize the  action  of  the  court.  ^     If  a  bill'  filed  does  not  bring 
before  the  court  all  the  parties  necessary  for  a  proper  deter- 
mination  of    the  suit,  but  the  bill,  instead  of   being  dis- 
missed on  that  account,  is  dismissed  for  luant  of  equity,  this 
is  a  bar  to  any  future  bill  seeking  the  same  relief.^     A  bill 
to  redeem  was  filed.     The  defendant  having  answered,  the 
plaintiff  failed  to  reply,  and,  without,  the  knowledge  of  the 
defendant,    dismissed  the  suit.     The  defendant  aftern'ard 
had  judgment  entered  in  his  favor  for  costs.     It  was  held, 
the  bill  being  dismissed  without  any  restriction,  that  this 
was  a  judgment  on  the  merits,  and  as  such  it  was  a  bar  to 
any  future  bill  for  the  same  cause.  ^     If  a  bill  by  a  vendor, 
seeking  a  specific  performance  of  a  contract  to  purchase,  be 
dismissed  on  account  of  some  defect  in  his  title,  the  doors 
of  courts  of  equity  are,  and  ought  to  be,  forever  closed 
upon  him,  though  he  may  afterward  be  able  to  make  a  good 
title.     If  the  court  intended  to  grant  the  complainant  fur- 
ther time,  it  should  have  continued  the  cause,  and  thereby 
given  him  an  opportunity  to  complete  his  title,  or  should 
have  dismissed  the  bill  without  prejudice.     In  case  it  dis- 
misses the  bill  generally,  the  right  of  the  vendor  to  compel 
a  specific  performance  is  thereby  conclusive!}'  and  perpetu- 
ally negatived.  5     A  section  of  the  law  of  the  United  States 
in  relation  to  patents  provides  that,  where  two  patents  in- 
terfere, any  person  interested  may  apply  in  equity,  on  no- 
tice to  the  adverse  parties,  and  the  court  may  adjudge  and 
declare  either  of  the  patents  void,  in  whole  or  in  part,  or  inop- 


1  Thurston  v.  Thurston,  99  Mass. 
39. 

2Gisi  V.  Davis,  2  Hill.  Ch.  (S.  C.) 
335. 

3Curts  V.  Trustees  of  Bardstown,  G 
J.  J.  M.,  p.  536. 

290 


4  Borrowscale  v.   Tuttle,   5    Allen, 
377. 

5  Hepburn  v.    Dundas,    1   Wheat. 
179. 


Chap.  XII.]  A  BILL  MAY  BE  DISMISSED.  g^270-270a 

erafive  and  invalid  in  any  particular  part  of  the  United 
States.'  The  effect  of  a  decree  entered,  generally  dismiss- 
insr  a  bill  brought  before  the  court  under  this  act,  is  not 
equivalent  to  a  judicial  declaration  that  the  patent  of  the 
complainant  is  either  inoperative  or  void.  In  announcing 
this  conclusion,  the  court,  after  suggesting  that  the  dis- 
missal may  have  been  ordered  because  the  plaintiff  did  not 
show  that  defendant  violated  his  rights,  or  because  the  de- 
fendant may  have  shown  a  license  from  the  plaintiff,  said: 
"A  judgment  or  decree  under  this  statute  can  not  be  accept- 
ed as  determining  that  point,  unless  it  be  direct  and  affirm- 
ative in  terms,  and  in  the  words  of  the  statute.  The  court 
must  adjudge  the  patent  void  in  whole  or  in  part,  or  inoper- 
ative and  invalid  in  some  particular  part  of  the  United 
States.  Had  the  decree  asserted  the  interference  of  the 
patents,  and  declared  either  of  them  void,  that  decree 
would  have  been  conclusive.  ^ 

§  270a.     A  Bill  may  be  Dismissed  before  the  Hearing, 

on  the  motion  of  the  plaintiff,  upon  payment  of  costs.  ^  Such 
a  dismissal  has  no  higher  effect  as  res  judicata  than  the  vol- 
untary dismissal  of  an  action  at  law.*  This  rule  was  ap- 
plied where  the  cause  had  been  set  down  for  hearing;  but 
before  the  testimony  was  published  the  complainant  dis- 
missed his  bill.  5  In  a  case  before  Chancellor  Kent,  the 
decree  relied  upon  as  a  bar  was  one  dismissing  a  former 
bill,  because  no  one  appeared  on  the  part  of  the  complain- 
ant at  the  hearing.  The  Chancellor  said :  "The  merits  of 
the  former  cause  were  never  discussed,  and  no  opinion  of 
the  court  has  ever  been  expressed  upon  them.  It  is,  there- 
fore, not  a  case  within  the  rule  rendering  a  decree  a  bar  to 
a  new  suit.  The  gi'ound  of  this  defense  by  plea  is,  that  the 
matter  has  already  been  decided,  and  here  has  been  no  de- 
cision of  the  matter."*^      But  this  decision  has  since  been 


1  ^  IG,  Patent  Act  183G;  5  U.  S. 
Stat,  at  Large,  p.  123. 

2Tyler  v.  Hyde,  2  Blatchf.  308. 

3 Cummins  v.  Bennett,  8  Pui.  79; 
Simpson  v.  Brewster,  9  Pai.  245;  Car- 
rington  v.  Holly,  1  Dick.  Ch.  280; 
Curtis  V.  Lloyd,  4  Myl.  &  Cr.  19-4; 
Lock  V.  Nash,  2  Madd.  Ch.  389;  White 


V.  Westmeath,  1  Beav.  174;  Knox  v. 
Brown,  2Bro.  C.  C.  185.- 

4Walden  v.  Bodley,  14  Pet.  U.  S. 
ICO;  Conn.  v.  Penn.,  5  Wheat.  427; 
Badger  v.  Badger,  1  Cliff.  C.  C.  241. 

5  Badger  v.  Badger,  1  Cliff.  C.  C. 
241. 

cEosse  V.  Eust,  4  Johns.  Ch.  300. 

291 


g^2T0a-271  law  op  judgments.  [Chap.  XII. 

overraled,  on  the  ground  "that,  as  tho  bill  was  dismissed 
after  publication  had  passed,  it  was  tho  same  thing,  in  legal 
effect,  as  though  the  cause  had  been  brought  to  a  hearing 
on  the  pleadings  and  proofs."^ 

§  271.     Immaterial  Findings. — The  effect  of  cverj  judge- 
ment or  decree,  as  an  estoppel,  is  restricted  to  such  matters 
as  might  have  been  litigated  under  the  pleadings.'^     Thus, 
if  plaintiff,  in  an  action  in  relation  to  real  estate,  avers  no 
title  beyond  his  own  life,  the  judgment  rendered  in  his  fa- 
vor is  not  conclusive  as  to  any  greater  title  than  he  put  in 
issue. ^    The  agreement  of  the  litigants  that  matters,  not  in 
issue,  may  be  given  in  evidence,  and  may  be  determined  by 
the  verdict  of  the  jury,  will  not  enlarge  the  effect  of  the 
judgment  as  an  estoppel.*     Nor  can  evidence  be  admitted 
"to  show  a  prior  or  contemporaneous  parol  agreement  be- 
tween the  parties,  the  effect  of  which  would  be  to  materially 
vary  the  terms  of  the  decree  and  change  the  rights  of  the 
parties  thereunder."     A  divorced  husband  cannot,  in  a  pro- 
ceeding by  his  former  wife  to  obtain  an  allowance  for  the 
support  of  their  child,  show  that  the  decree  of  divorce  was 
entered  in  pursuance  of  a  parol  agreement,  by  the  terms  of 
Avhich  she  was  to  provide  for  the  child.^     The  rule  that  no 
judgment  or  decree  is  conclusive  of  anything  which  is  not 
required  to  support  such  judgment  or  decree,  is  not  a  mere 
rule  of  construction  to  be  employed  in  giving  effect  to  an 
adjudication,  where  the  record  fails  to  disclose  what  find- 
ings were  made  by  the  court  or  jury.     It  is  an  unyielding 
restriction  of  the  powers  of  the  parties,  of  the  court,  and  of 
the  jury.     If  the  language  of  a  decree  be  general,  it  will  be 
restrained  to  the  issues  made  in  the  case,  and  to  the  subject 
matter  under  consideration  by  the  court.'     But  if  "a  decree 
in  express  terms  purports  to  affirm  a  particular  fact  or  rule 
of  law,  yet,  if  such  fact  or  rule  of  law  was  immaterial  to  the 
issue,  and  the  controversy  did  not  turn  upon  it,  the  decree 


^  Ogsbury  v.  LaFarge,  2  N.  Y.  114, 
citing  Byrne  v.  Frere,  2  Molloy,  157. 

2Toun  V.  Lamphere,  34  Vorm.  3G5  ; 
Duncan  v.  Holcomb,  26  Ind.  378;  Bur- 
dick  V.  Post,  12  Barb.  168. 

3  Bradford  v.  Bradford,  5  Conn.  127; 

292 


■•  CamiDbell  v.  Consalus,  25  N.  Y. 
613;  Wolfe  v.  Washburn,  6  Cow.  262; 
Guest  V.  Warner,  9  Ex.  379. 

■>  Wilson  V.  Wilson,  43  Cal.  399. 

G  Bouvillion  v.  Bourg,  10  La.  An. 
303. 


Chap.  XII.]  MATTER  IN  ISSUE.  gg 27 1-272 

will  not  conclude  the  parties  in  reference  thereto.'"  The 
declaration  in  a  decree  of  the  character  of  the  title  of  one 
of  the  parties,  when  the  consideration  of  such  character  is 
foreign  to  the  case  and  unnecessary  to  its  disposition,  has 
no  force  upon  the  parties  or  privies,  nor  upon  any  one  else, 
as  an  adjudication  of  title. ^  The  special  finding  of  a  jury 
not  confirmed  by  any  judgment  of  the  court,  nor  involved 
in  any  general  verdict,  cannot  be  relied  upon  on  a  trial  be- 
fore another  or  the  same  jury,  in  the  same  or  another  suit, 
as  proof  of  the  facts  so  found.  It  is  only  when  such  spec- 
ial finding  has  become  the  basis  of  a  judgment,  that  the 
matters  affirmed  or  denied  by  it  are  res  adjudlcata.^  No  rec- 
ord is  conclusive  as  to  the  truth  of  any  immaterial  allega- 
tions contained  in  the  pleadings.  Thus,  in  an  action  of 
debt  on  a  bond,  it  may  be  shown  that  the  bond  was  made 
at  A.,  though  in  a  former  suit  it  was  described  as  being 
made  at  B.  A  conviction  for  felony,  upon  a  general  ver- 
dict, is  never  conclusive  that  the  offense  was  committed  on 
the  day  named  in  the  indictment,  for  time  was  not  of  the 
essence  of  the  offense.  And  this  rule  will  hold  good  in  re- 
lation to  all  facts  stated  in  the  pleadings  of  either  party, 
whether  denied  or  admitted  by  his  adversary,  if  the  exist- 
ence or  non-existence  of  those  facts  could  have  no  effect 
upon  the  final  determination  of  the  rights  of  the  parties.* 


P/VKT  III.  — OF  EVIDENCE  TO  ESTABLISH  OR  KEBUT  THE  PRE- 
SUMPTION OF  RES  JUDICATA. 

§  272.  Whether  Matter  in  Issue  can  be  shown  to 
have  been  Omitted. — AYe  have  shown  that  the  rule  ex- 
cluding from  the  conclusive  effect  of  a  final  adjudication  all 
of  those  matters  which  were  not  material  to  the  decision  of 
the  controversy  made  by  the  pleadings,  is  an  inflexible  rule. 
It  seems  that  there  ought  to  be  a  rule  the  converse  of  this, 
and  equally  inflexible,  to  the  effect  that  there  shall  be  hi- 


iWoodgate  v.  Fleet,  44  N.  Y.  1 ; 
People  V.  Johnson,  33  N.  Y.  63;  S.  C. 
5  Trans.  App.  299;  Hotchkissv.  Nich- 
ols, 3  Day,  138;  Coit  v.  Tracy,  8  Coun. 
268. 


sFulton  0.  H;inlow,  20  Cal.  450. 
^  Hawks  I".  Truesclell,  99  Mass.  537. 
<  Ph.  Ev.,  vol.  2,  p.  a  of  4th  Am.  Ed. 

293 


g272  LAW  OF  JUDGMENTS.  [Chap.    XII. 

eluded  in  the  conclusive  effect  of  every  final  adjudication 
every  matter  material  to  the  disposition  of  the  controversy, 
as  made  hj  the  pleadings,  when  the  cause  is  submitted  for 
decision ;  and  such,  probably,  is  the  generally  recognized 
rule  at  the  present  day.  But  it  is  oi3poscd  by  decisions 
■which  permit  either  the  plaintiff  or  the  defendant,  in  certain 
cases,  to  show  that  a  matter  asserted  as  a  claim  or  as  a  de- 
fense by  his  pleading,  was  not  attempted  to  be  asserted  by 
him  at  the  trial.  Thus,  it  has  been  said  that  "if  a  party 
attempt,  on  the  trial  of  his  action,  to  prove  a  demand  against 
the  defendant,  and  fail,  he  cannot  set  it  up  again  on  a  second 
action ;  but  if  he  can  clearly  show  that  he  omitted  to  give 
any  evidence  of  his  demand  in  the  action,  he  is  not  con- 
cluded from  doing  so  afterward."^  In  the  case  from  which 
this  quotation  is  made,  a  plaintiff,  having  two  demands, 
clearly  distinct,  sued  upon  both,  and  obtained  a  default. 
In  executing  the  writ  of  inquiry,  he  gave  evidence  upon  but 
one  of  his  demands,  and  recovered  judgment  accordingly. 
In  rendering  a  decision  permitting  a  second  action  to  be 
maintained  for  the  demand  not  allowed  in  the  first.  Lord 
Kenyon  said :  "In  truth,  this  is  a  question  of  great  deli- 
cacy. We  must  take  care  not  to  tempt  persons  to  try  ex- 
periments in  one  action,  and  when  they  fail,  to  suffer  them 
to  bring  other  actions  for  the  same  demand.  The  plaintiff 
who  brings  a  second  action  ought  not  to  leave  it  to  nice  in- 
vestigation, to  see  whether  the  two  causes  of  action  are  the 
same.  He  ought  to  show,  beyond  all  controversy,  that  the 
second  is  a  different  cause  of  action  from  the  first,  in  which 
he  failed.  In  this  case  it  is  clearly  shown  that  this  demand 
was  not  inquired  into  in  the  former  action."^  "But,  if 
plaintiff,  having  several  causes  of  action  against  the  defend- 
ant, on  the  trial  offers  evidence  on  these  causes,  and  fails 
for  want  of  sufficient  evidence  to  sustain  some  of  them,  he 
can  not  bring  another  action  for  those  causes  of  action  on 
which  he  failed.  Where  the  plaintiff  fails  to  recover  all 
that  he  is  entitled  to  for  want  of  some  proof  on  the  first 
trial,  he  should  move  to  set  aside  the  verdict  that  he  has 


1  Seddon  v.  Tutop,    G   T.   K.  GOT  ; 
Thome  u.  Cooper,  15  E.   C.  L.  387; 
Deacon  v.  G.  W.  E.  W.  Co.,  6  Upper 
29i 


Canada,  C.  P.  241;   Hade  v.  Green, 
2  Tyrwhit,  390. 

■•■'  Seddon  v.  Tutop,  G  D.  &  E.  G07. 


Chap.  XII.] 


MATTER  IN   ISSUE. 


?272 


obtained."'     But  so  far  as  the  phiintiff  is  concerned,  most 
of  the  American  cases  go  further.     They  decLaro  that  he 
will  not  be  allowed  to  bring  another  action,  because  in  the 
first  he  gave  no  evidence  of  his  demand;"  that  he  will  not 
be  permitted  to  reserve,  or,  from  any  cause,  not  to  produce 
part  of  his  evidence;  and  that  the  judgment  Avill  bo  conclu- 
sive as  to  every  matter  which  he  could  have  proved  in  the 
first  suit,  and  Avliich  was  not  proved  nor  withdrawn. •''     The 
defendant,  however,  although  his  pleadings  present  a  claim, 
need  not  give  evidence  in  its  support,  unless  it  is  such  a 
matter  that  he  is  compelled  to  present  and  litigate  it  in  the 
first  suit.     Thus,  where  a  defendant,  sued  for  the  price  of  a 
horse,  set  up  as  a  defense  a  breach  of  warranty  of  sound- 
ness of  the  horse,   and   failed  to  appear  at  the  trial,  and 
judgment  was  rendered  against  him,  he  was  allov/ed  after- 
ward to  recover  of  the  plaintiff  for  the  same  breach  of  war- 
ranty, because  this  was  an  affirmative  cause  of  action  which 
defendant  had  a  right  to  litigate  as  a  plaintiff.     In  cases  like 
this,  the  question  Avhether  the  claim  was  presented  and  sub- 
mitted as  a  defense,  may  be  settled  by  proof  at  the  trial  on 
the   second   action.     But,   if  the  claim  is  specifically  em- 
braced in  the  pleadings,  the  presumption  is,  that  it  was  pre- 
sented at  the  trial,  and  considered  in  the  rendition  of  the 
judgment.^     If  a  court  erroneoushj  reject  evidence  offered  to 
prove  a  claim  or  defense,  on  the  ground  that  it  is  inadmis- 
sible, such  claim,  nevertheless,  on  rendition  of  the  judg- 
ment, becomes  res  yucZica to,  and  so  remains  until  the  judg- 
ment is  vacated  or  reversed  by  some  appropriate  proceed- 
ing.^   If  such  evidence  was  offered  to  establish  a  cause  of 
action,  stated  in  a  particular  count  of  the  plaintiff's  declara- 
tion, and  the  plaintiff,  failing  to  strike  out  or  withdraw  that 
count,   suffers  a  general  verdict  on  the  whole   cause,  the 
judgment  will  be  a  bar  to  another  action  on  the  claim  so  at- 


1  Stafford  v.  Clark,  2  Bing.  377; 
Brockway  v.  Kinney,  2  Johns.  210; 
McGuiuty  v.  Herrick,  5  Wend.  2i0. 

2  Kamsey  v.  Herudon,  1  McL.  450. 

3  Baker  i\  Band,  13  Barb.  152;Fisk 
V.  Miller,  20  Tex.  579;  Exr.  Tate  v. 
Hunter,  3  Strob.  Eq.  136.  But  in 
Virginia  the  rule  seems  to  be  iu  ac-, 


cordance  M'ith  the  English  cases  al- 
ready cited;  J?outhsido  R.  E.  Co.  v. 
Daniel,  20  Gratt.  36G. 

*  Burwell  v.  Knight,  51  Barb.  2G7. 

3  Beall  V.  Pearce,  12  Md.  555;  Bur- 
nett IK  Smith,  -4  Gray,  50;  Grant  v. 
Bullon,  U  Johns.  377. 

295 


g272  LAW  OF  JUDGMENTS.  fCliap.  XII. 

tempted  to  be  establislied.'      A  judgment  of  a  court  pos- 
sessing competent  jurisdiction  is  final,  not  oul}^  iu  reference 
to  the  matters  actually  or  formally  litigated,  but  as  to  all 
other  matters  which  the  parties  might  have  litigated,  and 
had  decided  in  the  cause."     A  party  cannot  try  his  action 
in  parts.     The  judgment  is  conclusive,  not  only  of  the  mat- 
ters contested,  but  as  to  every  other  thing  within  the  knowl- 
edge of  tlie  complainant,  which  might  have  been  set  up  as 
a  ground  for  relief  iu  the  first  suit.  3     If  the  determination 
of  a  question  is  necessarily  involved  in  the  judgment,  it  is 
immaterial  whether  it  was  actually  litigated  or  not.  *    Where, 
iu  fact,  items  of  an  account  Avere  specifically  set  forth  in 
the  statement  of  the  causes  of  action  in  a  former  suit,  and, 
though  known  to  exist,  were  for  some  reason  overlooked 
and  not  considered,  they  cannot  in  law  be  the  ground  of  a 
second  action,  ^  nor  can  they  be  made  the  ground  of  such 
action,  though  they  were  omitted,  owing  to  an  error  of  the 
justice  before  whom  the  case  was  tried,  in  rendering  his 
judgment. "     The  omission  of  a  court  to  award  relief  prayed 
for,  is  an  adjudication,   in  effect,  that  the  complainant  is 
not  entitled  thereto.''     Hence,  if,   in  an  action  on  a  note 
and  mortgage,  judgment   is  rendered  on  the  note  without 
any  order  of  sale,   this  is  conclusive  that  the  plaintiff  has 
no  lien,  and  he  can  not  afterward  maintain  an  action  to  fore- 
close his  mortgage.*^     From  the  decisions  cited  in  this  sec- 
tion, the  conclusion  is  irresistible,  that  a  judgment  or  decree 
is  conclusive  upon  all  causes  of  actions  and  all  matters  of 
defense  presented  by  the  pleadings,  and  not  withdrawn  be- 
fore or  during  the  trial,    except — 1st,    where   the  plaintiff 
claims  upon  several  and  distinct  causes  of  action,  in  which 
case  he  may,  according  to  some  £)i  the  authorities,  maintain 
a  second  action  upon  any  one  of  those  causes,  upon  which  he 
can  show  that  he  offered  no  evidence  at  the  trial  of  the  for- 


1  Smith  V.  Whiting,  11  Mass.  445, 
note  2C4  to  Th.  Ev. 

2  Bellinger  v.  Craigue,  31  Barb.  534; 
Davis  V.  Tallcott,  2  Kern.  184;  Mar- 
riott V.  Hampton,  7  T.  E.  265;  Bruen 
V.  Hone,  2  Barb.  59G. 

3  Hamilton  v.  Quinby,  46  111.  90; 
Shafcr  v.  Scttddy,  14  La.  An.  575. 

296 


*  Barker  v.  Cleveland,  10  Mich.  230. 

^  Keokuk  v.  Alexander,  21  Iowa, 
377. 

6  Town  V.  Smith,  14  Mich.  348. 

'  Thompson  v.  McKay,  41  Cal. ;  Oct. 
Term,  1871. 

8  Johnson  v.  Murphy,  17  Tex.  216. 


Chap.  XII.]  SIIO\Y  WELVT  WAS  DECIDED. 


g 2^72-27 


,mer  case;^  2cl,  wlicro  the  defoudant  pleads  a  matter  as  a 
defense  wliich  he  might  have  successfully  employed  as  a 
icause  of  action  against  the  plaintiff;  in  ^vllieh  case  it  ap- 
jpears  that  the  right  to  such  cause  of  action  is  not  lost  to 
.the  defendant,  unless  he  followed  up  his  pleading  by  offer- 
ing evidence  upon  it  in  the  former  suit.  With  the  possible 
exceptions  here  stated,  a  judgment  is  conclusive  upon  all 
the  material  issues  made  by  the  pleadings,  and  also  upon 
all  material  allegations  of  matters  of  claim  or  of  defense 
which  the  party  against  whom  such  allegation  is  made  does 
not  choose  to  controvert. 

§  273.  Evidence  to  Shovr  what  was  Decided. — A  fev/ 
early  cases  proceeded  upon  the  theory  that  a  former  judg- 
ment would  be  received  as  evidence  in  a  second  action,  only 
as  to  those  matters  which,  from  an  inspection  of  the  record, 
could  be  shown  to  have  been  settled  in  the  first.  ^  But  it 
■happens  frequently,  and  perhaps  in  a  majority  of  cases, 
that  the  matters  litigated  between  the  parties  to  an  action 
cannot  be  ascertained  from  the  record.  It  is  now  generally, 
and  perhaps  universally,  conceded,  that  parol  evidence  may 
be  received  for  the  purpose  of  showing  whether  a  question 
was  determined  in  a  former  suit;^  and  that  "the  estoppel 
extends  beyond  what  appears  on  the  face  of  the  judgment 
to  every  allegation  which,  having  been  made  on  one  side 
and  denied  on  the  other,  was  at  issue  and  determined  in  the 
course  of  the  proceedings ;  and  that  while  there  exists  a 
strong  presumption  that  the  judgment  covers  every  matter 
in  the  issues  and  apparently  settled  by  the  judgment,  yet, 
that  this  presumption  may  bo  overcome  by  clear  proof  that 
no  evidence  was  given  as  to  that  fact  by  the  plaintiff,  or 
that  defendant  failed  to  take  advantage  of  some  defense 
"which  he  might  have  made  available."*    It  may  always  be 


^  2  Smith's  Leading  Cases,  C69. 

-  Smith  V.  Sherwood,  4  Conn.  276  ; 
'Church  V.  Leavenworth,  4  Day,  281  ; 
1  Esp.  i'3;  Manny  v.  Harris,  2  Johns. 
'29. 

3  Taylor  v.  Dustin,  43  N.  H.  493 ; 
King  V.  Chase,  15  N.  H.  9  ;  Foster  v. 
Wells,  4  Tex.  101  :  Walker  v.  Chase, 
53  Maine,  258 ;  Wood  v.  Jaeksou,  8 


Wend.  9  ;  Young  v.  Black,  7  Cranch, 
5G5  ;  Driscoll  u.  Damp,  16  Wis.  106  ; 
Vallandingham  v.  Eyan,  17  111.  25  ; 
Hill  V.  Freeman,  7  Geo.  211;  State  v. 
Morton,  18  Mo.  53  ;  Brown  v.  Iving, 
10  Mo.  56;  Amsden  v.  Diibuque  &  Si- 
oux City  E.  E.  Co.,  32  Iowa.  288. 
^  Clemens  v.  Clemens,  37  N.  Y.  59. 

297 


§^273-274 


LAW  OF  JUDGMENTS, 


[Chap.  XII. 


sliown  by  eyidnce  aliunde,  that  any  matter  which  the  issue 
was  broad  enough  to  cover,  arose  and  was  determined  in  the 
prior  suit.'  The  record  may  be  iirst  put  in  evidence,  and 
then  it  may  be  followed  by  such  parol  evidence  as  may  be 
necessary  to  give  it  proper  effect.^  If  the  record  in  an 
action  of  ejectment  does  not  show  on  what  grounds  the 
plaintiff  or  defendant  recovered,  it  may  be  explained  by 
showing  what  title  was  established  or  set  up  in  the  action.  3 
Judgment  on  the  merits  against  the  master,  in  an  action  of 
trespass  for  the  act  of  his  servant,  is  a  bar  to  an  action 
against  the  servant  for  the  same  act,  though  such  Judgment 
was  not  rendered  until  after  the  general  issue  was  pleaded  to 
the  action  against  the  servant :  and  parol  evidence  is  ad- 
missible to  show  that  the  same  matter  is  in  controversy  in 
both  actions.'  An  entry  of  "dismissed  at  costs  of  plaintiff, 
being  susceptible  of  a  double  construction,  i.  e.,  that  it  was 
a  judgment  for  defendant  on  the  merits,  or  a  judgment  of 
nonsuit  or  discontinuance,  may  be  explained  by  evidence 
of  the  justice  to  show  which  character  of  judgment  he  in- 
tended to  enter.  "-^  "When  a  number  of  issues  are  presented 
the  finding  in  any  one  of  which  will  warrant  the  verdict  and 
judgment,  it  is  competent  to  show  that  the  finding  was  upon 
one  rather  than  on  another  of  these  different  issues.  Nor 
does  the  subsequent  ai)plication  of  the  verdict  to  a  single 
count  by  the  court,  preclude  this  inquiry."  In  order  to  show 
by  evidence  aliunde  that  a  matter  is  res  judicata,  it  must 
appear  not  only  that  it  was  properly  in  issue  in  the  former 
trial,  but  also  that  the  verdict  and  judgment  necessarily  in- 
volved its  determination.^ 

§274.     Evidence  to  rebut  Apparent  Estoppel. — If  it 

appear,  prima  facie,  that  a  question  has  been  adjudicated, 
it  may  be  proved  by  parol  testimony  that  such  question  was 


1  Chamberlain  v.  Gaillard,  26  Ala. 
504 ;  Dunckel  v.  Wiles,  1  Kern,  420 ; 
Harris  v.  Harris,  36  Barb.  88  ;  Law- 
rence V.  Hunt,  10  Wend.  80;  Gardner 
V.  Buckbee,  3  Cow.  120;  Eastman  v. 
Cooper,  15  Pick.  276. 

2  Briggs  V.  Wells,  12  Barb.  567. 

298 


3  Emery  v.  Fowler,  39  Maine,  526. 
*  Carr  v.  Woodleff,  G  Jones,  N.  C. 
400. 

5  W.  A.  &  G.  S.  P.  Co.  V.  Sickles, 
24  How.  U.  S.  333, 

6  Packet  Co.  v.  Sickles,  5  Wall.  580. 


Cliap.  XII.]         EECOED  NOT  TO  BE  IMPUGNED.  §^27^1-275 

not  in  fact  decided  in  tlie  former  suit.^  Where  items  conld 
have  been  proved  in  a  former  action,  the  presumption  arises 
that  they  were  proved,  but  it  may  be  rebutted  aliunde.'^  If  a 
matter  were  pleaded  as  a  credit,  it  is  competent  to  show  that 
it  was  not  offered  as  a  credit  on  the  trial,  and  that  the  court 
in  deciding  the  case  expressly  excluded  it  from  considera- 
tion.^ Parol  evidence  is  also  admissible,  according  to  some 
decisions,  to  prove  that  a  former  action  in  a  justices'  court 
was  not  tried  on  the  merits,  but  was  a  nonsuit.*  In  an  ac- 
tion for  goods  sold,  the  plaintiff,  to  avoid  the  plea  of  ixs 
judicata,  may  show  that  the  previous  judgment  against  him 
was  rendered  on  the  ground  that  the  time  of  credit  given  on 
the  goods  had  not  expired.'^  If  the  defendant  in  a  real  ac- 
tion plead  a  former  recovery  as  a  bar,  the  plaintiff  may  prove 
that  he  failed  in  his  suit  on  the  sole  ground  that  his  grantor 
was  disseized  at  the  time  of  conveying  title;  and  the  i)laintiff 
may  thereupon  establish  his  title  under  a  subsequent  con- 
veyance from  such  grantor.*^ 

g  275.  Record  not  to  be  Impugned.  —  It  is  important 
that  the  evidence  offered  to  explain  a  record,  should  not 
contradict  it.  For  it  cannot  be  shown,  in  opposition  to 
the  record,  that  a  question  which  appears  by  it  to  have 
been  settled,  was  not  in  fact  decided,'  nor  that,  while  a  spe- 
cial cause  of  action  was  in  issue,  a  different  matter  was  in 
truth  litigated.^  But  in  New  York  it  is  said  a  different  rule 
may  apply  to  jvistice's  courts,  because  the  proceedings  in 
them  are  informal.^  Parol  proof  can  be  given  to  show  the 
grounds  of  a  judgment  only  when  such  grounds  do  not  ap- 


1  Johnson  v.  Smith,  15  East.  213  ; 
Whittomore  v.  Whittemore,  2  N.  H. 
26;  Parker  u.  Thompson,  3  Pick.  429; 
Phillips  V.  Berich,  16  Johns.  136  ; 
"VVheeler  v.  Van  Houten,  12  Johns. 
311;  Coleman's  Appeal,  62  Pa.  S.  252; 
Southside  E.  Pt.  Co.  v.  Daniel,  20 
Gratt.  3G3;  Spradling  v.  Conway,  51 
Mo.  51. 

2  Cadger  v.  Titcomb,  15  Piclc.  416  ; 
Webster  v.  Lee,  5  Mass.  334;  Golightly 
V.  Jellicoe,  4  T.  E.  147;  Seddon  v.  Tu- 
top,  6  T.  E.  G07. 


8  Smith- V.  Talbot,  11  Ark.  G66. 
♦  Easton  v.  Bratton,  13  Tex.  30. 

5  Wilcox  V.  Lee,  1  Eob.  N.  Y.  355. 

6  Perkins  v.  Parker,  10  Allen,  22. 

'  Fisk  V.  Miller,  20  Tex.  579;  Graves 
L-.  White,  13  Tex.  123. 

8 Campbell  v.  Butts,  3  Comst.  173; 
Campbell  v.  Consalus,  25  N.  Y.  616  ; 
Standish  v.  Parker,  2  Pick.  20. 

0 McLean  v.  Hungarin,  13  Johns. 
181;  King  v.  Fuller,  3  Caiues,  152; 
Wilder  V.  Case,  IG  Wend.  583. 

299 


g§275-27G  LAW  OF  judgments.  [Cliap.  XII. 

pear  from  tlie  record  itself.  In  no  case  can  any  matter  be 
alleged  or  proved  to  have  been  passed  upon,  except  it  be 
such  as  might  have  been  given  in  evidence,  legitimately, 
under  the  issue  joined.'  "Where  a  complaint  is  free  from 
ambiguity,  it  cannot  be  shown  that  the  Judgment  given 
thereon  was  for  damages  occasioned  by  injiiries  to  land  not 
within  the  premises  described  in  the  complaint.^  A  provis- 
ion of  a  statute  provided  that  whenever  a  sheriff  failed  to 
make  money  on  an  execution,  by  the  first  day  of  the  term 
before  which  it  was  returnable,  the  plaintiff  might  suggest 
that  the  failure  was  attributable  to  want  of  diligence,  and 
that,  upon  such  suggestion,  the  court  should  cause  an  issue 
to  be  made  to  try  the  fact.  In  an  action  upon  a  sheriff's 
bond,  for  not  making  money  on  an  execution,  the  defend- 
ants plead  that  an  issue  made  under  this  statute  had  been 
found  in  their  favor.  Plaintiffs  replied  that  the  matters, 
neglects  and  defaults  complained  of,  were  not  the  same  iden- 
tical ones  in  respect  to  which  defendants  recovered  their 
judgment.  It  was  held  that  the  matters  sought  to  be  put 
in  issue  in  the  replication  were  necessarily  involved  in  the 
former  trial,  and  that  to  uphold  the  replication  would  be  to 
permit  a  second  litigation  of  the  same  questions ;  that  the 
facts  in  issue  in  the  suit  appear  by  necessary  intendment  to 
be  the  facts  involved  in  the  proceeding  under  the  statute, 
and  that  to  say  they  were  not  so  involved,  is  to  contradict 
the  record  itself.^ 

g  276.  Onus  of  Proof. — There  are  two  classes  of  cases 
in  which  evidence  aliunde  is  admissible  for  the  purpose  of 
showing  what  matters  are  res  judicata,  viz:  1st — all  those 
cases  in  which,  from  the  record  alone,  no  intimation  is 
given  whether  a  particular  matter  has  been  determined  or 
not  ;  2d — all  those  cases  in  which,  fi-om  the  record,  it  ap- 
pears that  a  particular  question  was  probably  determined. 
As  a  general  rule,  the  onus  of  establishing  an  estoppel  is, 
by  the  law,   cast  upon  him  who  invokes  it.  *     Under  this 


1  Briggsu.  Wells,  12  Barb.  5G7. 

2  Gay  V.  Wells,  7  Pick.  219. 

3  Chapman  v.  Smith,  16  How.  U.  S. 
114. 

•^  Cummings  v.  Calgrove,  25  Pa.  S. 

300 


150;  Bennett  i'.  Holmes,  1  Dev.  <fe  Bat. 
■18G;  Strother  v.  Butler,  17  Ala.  733; 
Doty  V.  Brown,  i  N.  Y.  71;  Davis  v. 
Talcott,  14  Barb.  511;  Smalley  v. 
Edey,  19  Ills.  207. 


Cliap.  XII.]  ONUS  OF  rEOOF.  g27G 

rule  there  can  be  no  doubt  that,  in  all  cases  coming  under 
the  first  class,  it  is  incumbent  upon  a  party  alleging  that  a 
question  has  been  settled  by  a  former  adjudication,  to  sup- 
port his  allegation  by  evidence  aliunde.  But  in  relation  to 
cases  of  the  second  class,  there  appears  to  be  a  radical  dif- 
ference of  opinion.  On  one  side  it  is  claimed  that,  "where 
the  declaration  in  the  second  action  is  framed  in  such  a 
manner  that  the  causes  of  action  may  be  the  same  as  those 
in  the  fir^jt  suit,  it  is  incumbent  upon  the  party  bringing  the 
second  action  to  show  that  they  are  not  the  same.'"  "A 
party  who  brings  a  second  action  must  not  leave  it  to  nice 
investigation  to  see  whether  the  two  causes  are  the  same. 
He  ought  to  show,  beyond  doubt,  that  the  second  is  a  dif- 
ferent cause  of  action  from  the  first,  in  which  he  failed.  ^ 
In  cases  where  several  issues  are  made  by  the  pleadings, 
and  evidence  is  given  upon  all  those  issues,  and  a  general 
verdict  is  obtained,  the  question  arises  as  to  which  of  the 
issues  this  vprdict  is  conclusive.  In  Vermont,^  in  Penn- 
sylvania,* and  in  Indiana,^  the  presumption  is,  that  it  is 
conclusive  that  all  the  issues  were  found  in  favor  of  the  pre- 
vailing party,  and  he  is  permitted  to  rebut  that  presump- 
tion, if  he  can,  by  showing  that  the  finding  and  judgment 
■were  upon  a  particular  issue.  In  Massachusetts,  it  is  set- 
tled, by  a  number  of  decisions,  that  a  general''  verdict  in 
favor  of  a  party  presenting  several  claims  or  defenses,  is  not 
of  itself  lorima  facie  conclusive  upon  any  of  those  claims  or 
defenses.  Thus,  in  an  action  for  breaking  several  cove- 
nants in  a  lease,  the  plaintiff  recovered  general  verdict  for 
nominal  damages.  In  a  subsequent  action,  the  record  in 
the  former  action  was  held  not  to  show,  of  itself,  that  the 
breach  now  in  question  is  res  judicata.  The  cause  was  re- 
manded for  further  proceedings,  in  w'hich  it  was  shown,  by 
evidence  aliunde,  that  the^  breach  involved  in  the  second 
action  was  one  of  the  questions  litigated  in  the  former  suit, 
and  on  which  evidence  was  offered  at  the  trial.  With  this 
proof  to  support  it,  the  former  judgment  was  considered  a 


'  Lord  Bagot  v.  "Williams,  3  B.  &  C. 
p.  '235. 

2Aguew  V.  McElroy,  10  S.  &  M. 
552. 


3Whitc  V.  Simomls,  33  Vt.  178. 
.4  Rockwell  V.  Langley,  19  Peun.  S. 
502. 

5 Day  V.  Vallette,  25  Ind.  -12. 

301 


§§276-277  LAW  OF  judgments.  [Chap.  XII. 

bar/  In  an  action  Avhore  plaintiff  sought  to  recover  from 
defendant  for  board  of  the  latter's  wife,  and  at  the  trial  re- 
lied on  two  grounds,  viz:  1st — that  she  was  absent  from  her 
husband  by  his  consent ;  2d — that  she  was  justifiably  ab- 
sent from  him  on  account  of  his  cruelty  to  her — a  judgment 
was  rendered  for  plaintiff.  This  judgment  was  held  to  es- 
tablish against  defendant,  that  his  wife  was  justifiably  ab- 
sent ;  and  to  leave  the  jury  to  judge  from  the  judgment  and 
from  such  other  evidence  as  came  before  them,  whether  the 
ground  of  the  former  recovery  was  absence  by  consent,  or 
absence  on  account  of  cruelty."  In  the  same  State  a  de- 
cree dismissing  a  bill  was  relied  upon  as  a  bar.  It  appeared 
from  the  record  that  some  temporary  defenses  were  relied 
upon  in  the  former  suit,  but  that  the  bill  was  dismissed 
without  specifying  any  reasons,  and  without  any  restriction 
upon  its  effect.  It  was  decided  not  to  be  conclusive  on  the 
merits.  In  announcing  this  decision,  the  court  said  :  "To 
be  a  bar  to  future  proceedings,  it  must  appear  that  the  for- 
mer judgment  necessarily  involved  the  determination  of  the 
same  fact,  to  prove  or  disprove  which  it  is  offered  in  evi- 
dence. It  is  not  enough  that  the  question  w^as  in  issue  in 
the  former  suit.  It  must  also  appear  to  be  precisely  deter- 
mined. Where  in  the  answer  various  matters  of  defense 
are  set  forth,  some  of  which  relate  to  the  maintenance  of 
the  suit,  and  others  to  the  merits,  and  there  is  a  general 
decree  of  bill  dismissed,  it  is  impossible  to  hold  the  decree 
a  bar  to  future  proceedings.^ 


PAET  IV.— MATTERS  WHICH  NEED  NOT  BE  LITIGATED. 

§277.  Set-ofF  not  Presented.  —  It  has  already  been 
stated  that  the  defendant  is  not  barVed,  by  judgment,  of 
any  matter  of  defense  which  he  was  not  bound  to  present  to 
the  court  or  jury,  and  on  which  he  offered  lio  evidence  at  the 
trial.  The  statutes  of  set-off  are  for  the  benefit  of  defend- 
ants, and  plaintiffs  cannot  compel  defendants  to  avail  them- 
selves of  those  benefits.     It  is  well  understood  that,  unless 


1  Sawyer  v.  Woodbury,  7  Gray,  499. 
^  Burlen  v.  Shannon,  14  Gray,  433. 
'  Foster  v.  The  Kichard   Busteed, 

302 


100  Mass.  409 ;  Burlen  v.  Shannon 
99  Mass.  200. 


Chap.  XII.]  SET-OFF  NOT  PRESENTED.  p77 

some  Stato  statute  provides  otherwise,  the  defendant  may- 
waive  his  set-off  or  counter-claim  in  any  action  against  liim, 
and  thereafter  litigate  it  in  an  action  instituted  by  himself.' 
By  the  recently  adopted  code  of  California,  if  the  counter- 
claim arises  "out  of  the  transaction  set  forth  in  the  com- 
plaint as  tlio  foundation  of  the  plaintiff's  claim,"  or  is  "con- 
nected with  the  subject  of  the  action,"  and  the  suit  is  in  any 
other  than  a  Justice's  court,  the  defendant,  by  omitting  to 
set  up  such  counter-claim,  waives  all  right  to  subsequently 
employ  it  as  a  cause  of  action.     (Sees.  438  and  439,  C.  C.  P".) 
But  if  the  action  be  in  a  justice's  court,  then  the  defendant 
must  present  all  facts   ' '  constituting  a  defense  or  counter- 
claim, upon  which  an  action  might  be  brought  by  the  de- 
fendant against  the  plaintiff  in  a  justice's  court;"  and  if  he 
fail  so  to  do,    ' '  neither  he  nor  his  assignee  can  afterward 
maintain  an  action  against  the  plaintiff'  therefor."     (Sees. 
855  and  85G,  C.  C.  P.)     In  some  States,  while  the  right  to 
waive  a  set-off  or  counter-claim,  and  institute  a  suit  upon 
it  afterward,  is  recognized,  yet  defendants  are  discouraged 
from  so  doing,  by  a  provision  of  the  statute,  providing  that 
in   the   subsequent  action  they  shall   not  recover  costs.  ^ 
While  all  matters  of  defense  are  barred,  the  distinction 
between  a  matter  of  defense  and  a  cross-claim  must  be  con- 
stantly kept  in  view.     A  cross-claim,  set-off,  or  matter  of 
recoupment  may  be  interposed  by  defendant,  but  ho  is  not 
bound  to  do  so.     Thus,  though  in  an  action  for  the  price  of 
goods  sold,  defendant  might  give  in  evidence  a  breach  of 
warranty  in  those  goods,  or  of  deceit  in  the  sale,  and  so  de- 
feat the  action  in  M-holo  or  in  part,  yet  he  is  under  no  obli- 
gation to  do  so,  and  he  may  maintain  his  cross-action  for 
the  damages,  after  having  submitted  to  the  judgment  for 
the  price.''     "When  part  performance  of  a  contract  (e.  g.,  to 
work  for  a  year)  forms  the  ground  of  an  action,  the  defend- 
ant may  suffer  judgment,  and  afterward  may  sue  and  recover 


1  "Wiiterman  on  Set-off,  p.  631; 
Hobbs  V.  Duff,  23  Cal.  596  ;  Eobbins 
V.  Harrison,  31  Ala.  160  ;  Le  Gueu  v. 
Gouvernenr,  1  John.  Cas.  501 ;  Ilobin- 
son  V.  Wiley,  Hemps.  38 ;  conti'a,  see 
Crawford  v.  Simouton,  7  Porter,  110; 


Emmerson  v.  Herriford,  8  Bush,  229; 
Fannin  v.  Thompson,  37  Geo.  533. 

2  Code  of  Ohio,  96,  119  ;  Code  of 
Nebraska,  102.  126;  Ed.  of  1852,  of 
Stato  of  Indiana,  p.  41. 

^  Cook  V.  Mosley,  13  Wend.  277. 
3( 


303 


gg277-279  LAW  OF  judgments.  [Chap.  XII. 

damages  for  the  breach  of  the  contract.^  A.  sued  B.  to  re- 
cover the  price  of  coustructiug  a  kitchen  range.  The  de- 
fendant ]3aid  into  court  a  sum  which  plaintiff  accepted  as  a 
full  satisfaction.  B.  then  sued  A.  for  negligently  perform- 
ing the  work,  and  was  permitted  to  recover,  on  the  ground 
that  the  recovery  in  the  second  action  was  not  inconsistent 
with  the  work  sued  for  in  the  first,  being  of  some  value.' 

§  278.  Set-ofF  not  Decided. — If  the  defendant  sets  up 
and  claims  a  set-off,  and  the  record  shows  that  the  court 
excluded  all  evidence  in  relation  to  the  set-off,  the  judg- 
ment cannot  be  used  as  an  estoppel  in  an  action  by  the  de- 
fendant for  the  same  set-off,'  because,  "although  a  court 
of  law  declines  to  determine  a  cfiiestion  of  set-off,  yet  it  is 
not  res  judicata,  so  as  to  preclude  an  inquiry  in  a  court  of 
equity.'"  And  the  same  rule  prevails  where,  instead  of  the 
court's  excluding  the  evidence,  the  defendant  failed  to  pre- 
sent any  proof  in  support  of  his  counter-claim.'^ 

§  279.  Set-ofF  not  Allowed. — There  is  no  doubt  that  if 
a  set-off  be  presented  by  defendant  in  his  pleadings,  and 
attempted  to  be  supported  by  evidence  to  the  jury,  it  will, 
whether  allowed  or  disallowed,  become  res  judicata.  It  is 
settled  by  the  judgment  as  conclusively  when  it  does  not 
appear  to  have  been  allowed,  as  though  there  were  an  ex- 
press finding  against  it.'*  When  the  set-off  has  been  pre- 
sented to  the  jury,  and  evidence  offered  to  sustain  it,  the 
effect  of  the  judgment  afterward  rendered  cannot  be  changed 
in  a  subsequent  action,  by  showing  that  the  jury  did  not  in 
fact  consider  the  set-off  in  making  their  verdict. '  If  a  judg- 
ment be  xDleaded  as  a  set-off,  when  it  is  a  proper  matter  of  set- 
off, and  be  disallowed  by  the  jury,  it  is  extinguished,  and 
can  no  longer  be  the  basis  of  an  action.  If  the  plaintiff 
afterward  issue  execution  upon  it,  ho  is  a  trespasser.**    A 

G  Wright  V.  Salisbury,  4G  Mo.  26. 

'  Baker  r.  Stincliik-kl,  57  Maine,  303. 

8  McGiiiuty  i;.  Herrick,  5  Wend.  240. 
The  same  rule  applies  to  matters  of  de- 
fense erroneously  rejected.  Collins  u. 
Bennett,  4G  N.  Y.  490. 


1  Britton  v.  Turner,  G  N.  H.  481. 

2  Fdgge  V.  Burbridge,  15  M.  &  W. 

598. 

3  Hobbs  i\  Duff,  23  Cal.  50G. 
'  Hackttt  V.  Conuett,  2  Ed.  Ch.  73. 
•''  Eastman  v.  Laws,    7  Scott,  4G1  ; 

Reynolds  v.  Eeynolds.  3  Ilamm.  2G8  ; 
.lanney  v.  Smith,  2  Crauch  C.  G.  499. 
304 


Chap.  XII.]  .VLLOWAXCE  OF  AN   OFF-SET.  g^279-2^0 

claim  presented  as  a  set-off,  and  not  allowed,  will  not  be 
barred,  except  it  was  in  such  a  condition  as  to  have  been  • 
barred  if  then  offered  as  a  cause  of  action  in  a  suit  by  the 
defendant  against  the  plaintiff.  Thus,  if  when  offered,  it  is 
not  legally  a  set-off,  because  not  yet  duo,  it  ma}-,  if  not  al- 
lowed, be  employed  as  a  cause  of  action,  or  as  a  set-off  in 
any  subsequent  suit  between  the  same  parties.  If  the  de- 
fendant plead  matter  which  he  might  have  made  the  basis 
of  a  suit,  and  on  the  trial  cross-examine  the  plaintiff's  wit- 
nesses in  reference  to  the  matters  so  pleaded  in  defense,  he 
cannot  avoid  the  effect  of  the  judgment  on  the  ground  that 
he  introduced  no  witnesses  to  testify  on  the  subject,  nor  be- 
cause the  referee  decided  the  case  before  the  defendant  was 
prepared  with  all  his  proofs.^ 

The  language  generally  employed  in  treating  of  this  sub- 
ject, is  such  as  to  indicate  that  to  conclude  a  claim  of  set-off, 
it  must  be  presented  to  the  jury,  and  some  evidence  given 
upon  it.  But  it  has  been  decided  that  a  set-off  not  with- 
drawn becomes  res  Judicata,  though  no  evidence  be  given 
to  support  it,  and  the  defendant  was  not  prepared  to  give 
such  evidence  at  the  trial  of  the  former  case.*  This  seems 
to  be  a  just  and  reasonable  decision.  There  is  as  much 
propriety  in  requiring  defendant  either  to  litigate  or  with- 
draw his  demands,  as  there  is  in  requiring  the  plaintiff  to 
support  or  withdraw  his  alleged  causes  of  action. 

§  280.  Voluntary  Allowance  of  an  OfF-Set.— A  plaintiff 
cannot,  in  a  suit  against  the  defendant,  compel  the  latter  to 
present  or  litigate  his  counter-claim,  by  giving  him  credit 
for  any  items  of  such  claim  and  suing  tor  the  balance.  Thus, 
if  A.  sue  B.  upon  an  account  in  which  he  credits  B.  with 
certain  goods,  B.  may  suffer  judgment  by  default,  and  may 
then  sue  A.  for  the  goods,  if  the  credit  was  not  their  full 
value.  The  value  of  the  goods  is  not  fixed  by  the  former 
judgment,  because  it  was  not  directly  in  issue,  and  the  de- 
fendant offered  no  evidence  upon  it.  He  is  not  bound  to 
offer  such  evidence  at  his  own  expense,  when  he  can,  by 
commencing  another  action,  offer  it  at  the  expense  of  his 

1  Ehle  V.  Bingham,  7  Barb.  4'Jl.       ]      -  Etistmnre  r.  Laws,  7  Do\vl.  431. 
(20)  305 


§§280-281  LAW  OF  JUDGMENTS.  [Chap.  XII. 

adversary.^  But  if  the  credits  for  goods  were  of  their  full 
value,  this  is  a  good  defense  to  an  action  brought  by  the 
defendant  against  the  plaintiff  for  the  same  goods. ^  If  the 
plaintiff  bring  an  action  in  which  he  credits  defendant  in 
certain  sums,  and  claims  an  amount  specified  as  a  balance 
due,  the  defendant  may  come  in  and  confess  judgment  for 
the  amount  sued  for,  and  this  will  not  prevent  him  from 
sustaining  a  subsequent  action  for  demands  due  to  him 
from  the  plaintiff,  and  not  allowed  by  the  latter  in  the  first 
suit." 

§  281.  Equitable  Defenses. — It  follows  from  the  rule, 
that  a  matter  can  not  become  res  judicata  until  it  can  be 
tried  upon  the  merits,  that  a  failure  at  law  does  not  affect  a 
remedy  or  defense,  cognizable  only  in  equity.^  Whenever 
a  "party  has  equitable  rights,  not  cognizable  in  a  court  of 
law,  which  would  in  a  court  of  equity  have  prevented  such 
an  adjudication  as  was  made  in  the  court  of  law,  the  judg- 
ment will  interpose  no  obstacle  to  redress  in  equity  since 
the  court  of  law  had  no  proper  jurisdiction  of  the  subject 
matter  forming  the  basis  of  redress  in  equity.  "^  Under  the 
Code  of  Procedure  as  in  force  in  New  York  and  in  Califor- 
nia, matters  formerly  recognized  only  in  equity  may  be  in- 
terposed as  defenses  to  actions  at  law.  The  question  has 
arisen  in  both  States,  whether  it  is  incumbent  on  the  de- 
fendant to  present  his  equitable  defense,  or  whether  he  may 
suffer  judgment  to  be  tahen  against  him,  and  subsequently 
assert  his  claims  in  equity  ?  The  answer  given  to  the  ques- 
tion in  the  former  State  is,  that,  "  as  a  general  rule,  the  de- 
fendant who  has  an  eqidtahlc  defense  to  an  action,  being  now 
authorized  to  interpose  it  by  answer,  is  bound  to  do  so,  and 
shall  not  be  permitted  to  bring  a  separate  action  merely  for 
the  purpose  of  restraining  the  prosecution  of  another  action 
pending  in  the  same  court. "«     In  California,  however,  the 

1  Minor  v.  Walter,  17  Mass.  237. 

2  Briggs  V.  Eichmond,  10  Pick.  392. 
^KaiifFu.  Messner,  4  Brewster,  98. 
4Moseby    v.    Wall,    23    Miss.    81; 

White  V.  Crew,  16  Geo.  416;  Arnold 
V.  Grimes,  2  Clarke,  1;  Pollack  v.  Gil- 
bert, IG  Geo.  398;  McCnrry  v.  Eobin- 


son,  23  Geo.  321;  Worthington  v. 
Curd,  22  Ark.  277. 

sStory's  Eq.  Jur.,  sec.  1573;  Dun- 
ham V.  Downer,  01  Vt.  249. 

cWinfield  v.  Bacon,  24  Barb.  154; 
Foote  V.  Sprague,  12  How.  Pr.  355; 
Fannin  v.  Thompson,  37  Geo.  533. 


Chap.  XII.]  CKOSS-CLAiMS.  §§281-282 

answer  is  in  direct  conflict  with  that  given  in  New  York.  In 
an  early  case  it  was  held  that:  "Although  a  party  may  set 
np  an  equitable  defense  to  an  action  at  law,  his  remedy  is 
not  confined  to  that  proceeding.  He  may  let  the  judgment 
go  at  law,  and  file  his  bill  in  equity  for  relief.  Our  prac- 
tice, while  it  enlarges  the  field  of  remedy,  does  not  take 
away  pre-existing  remedies  by  implication.'"  Ten  years 
later  it  was  said  that:  "  This  decision  has  been  acquiesced 
in  and  acted  on  as  settled  law  by  the  profession  from  the 
time  it  Avas  rendered,  and,  so  far  as  we  are  advised,  its  cor- 
rectness has  never  been  the  subject  of  judicial  doubt."  ^ 
Accordingly  a  defendant  who,  having  an  equitable  defense 
to  an  action  of  ejectment  on  the  ground  that  he  was  entitled 
to  a  conveyance  from  the  plaintiff,  and  who  first  plead  such 
defense,  and  afterward  withdrew  it,  and  suffered  judgment 
to  be  taken  against  him,  was  allowed  in  a  subsequent  suit 
to  compel  the  specific  performance  of  the  contract  to  con- 
vey. A  like  rule  prevails  where  the  defendant,  pleading  an 
equitable  defense,  without  withdrawing  it,  fails  to  appear  at 
the  trial,  and  judgment  is  therefore  given  against  him  A\ith- 
out  any  presentation  or  consideration  of  his  defense.  ^ 
AVhere  an  equitable  defense  is  presented,  which  might  have 
been  made  the  subject  of  an  original  bill,  the  defendant 
can  not,  after  verdict  in  favor  of  the  plaintiff,  present  the 
same  matters  in  equity  as  grounds  for  affirmative  relief 
against  j)laintiff.  * 

§  282. — Cross-Claims. — "Whenever  a  plaintiff  seeks  to  re- 
cover for  some  matter  which  he  might  have  presented  in  a 
former  action  against  himself,  as  the  foundation  for  a  claim 
in  the  nature  of  a  cross-action  for  damages,  the  test  of  his 
right  to  recover  in  the  second  action,  after  having  waived 
his  cross-claim  in  the  first,  is,  can  all  the  facts  necessary  to 
support  the  judgment  rendered  against  him  exist  at  the 
same  time  with  the  facts  necessary  to  support  the  cross- 
claim  sought  to  be  enforced  in  the  second  suit '?  But  if,  in 
order  to  recover  in  the  first  action,  the  plaintiff  must  have 


^  Lorraiuo  v.  Long,  G  Cal.  452. 

2  Hough  V.  Waters,  30  Cal.  309. 

3  jMcCieary  v.  Casey,  45  Cal.  128;  4 
Pac.  L.  R.  179. 


*  Terrell  v.  Higgs,  1  Dc  G.  and  J. 
388;  Arnold  u.  Allinor,  15  Grant's  Cli. 
375. 

307 


g §282-233  LAW  OF  judgments.  [Cliai3.  XII. 

shown  the  falsity  of  the  allegations  made  by  defendant  in 
the  second  suit,  then  the  former  judgment  is  a  bar.     Thus, 
if  plaintiff  sue  upon  a  contract  to  do  certain  work  upon  his 
part,  alleging  a  full  performance,  and  claiming  the  price 
stipulated  by  the  contract,  his  recovery  depends  upon  a  full 
compliance  with  his  agreement,  and  estops  the  defendant 
from  afterward  contending  that  he   sustained  any  damage 
from  the  uon-fulfillmgnt  of  the.  contract.'     If,  however,  a 
matter  in  the  nature  of  a  defense  and  cross-claim  is  pleaded, 
the  contrary  of  which  need  not  necessarily  be  established 
by  plaintiff  in  making  out  his  cause  of  action,  under  the 
allegations  in  his  complaint,  the  defendant  may  withdraw  it 
at  or  before  the  trial,  without  losing  his  right  to  assert  it  in 
a  subsequent  suit.     Thus,   the  recovery  upon  a  complaint 
for  work  and  labor  done,  etc.,  will  not  estop  defendant  from 
recovering  damages  sustained  by  him  by  the  manner  of  per- 
forming the  work  and  labor;  because  the  claim  of  the  de- 
fendant "not  being  necessary,  or  at  all  involved,  as  part  of 
the  plaintiff's  evidence,  prima  facie,  it  has  not  been  tried  or 
passed  upon,"  and  is  not  barred  unless  put  in  issue  by  the 


answer.^ 


PAET  V.-PLEADINGS  TO  MAKE  FORMER  JUDGMENT  AVAILABLE. 

g  283. — Necessity  of  Pleading.  —  Conceding  that  the 
pleadings  and  issues  in  a  second  action  are  such  as  to  en- 
title one  of  the  parties  to  place  in  evidence,  before  the  court 
or  jury,  the  record  of  a  former  action,  for  the  purpose  of 
showing  that  a  question  in  issue  in  the  second  action  has 
been  decided  in  the  first,  it  still  remains  to  be  considered 
whether  the  pleadings  in  the  second  action  are  such  as  to 
make  the  former  judgment  conclusive  of  the  facts  upon 
which  it  is  grounded.  In  all  these  cases,  where  a  party 
relying  upon  a  former  adjudication  as  an  estoppel  had  no 
opportunity  to  plead  it,  it  is  equally  a  bar  as  though  an 
opportunity  had  been  given  and  it  had  been  pleaded.  ^    Thus, 

iDavis  V.  Talcott,  12  N.  Y.  184.1  ^Dame  v.  Wingate,  12  N.  H.  291; 
Jlaiters  of  defense  can  not  be  litigated  Dows  V.  McMicliael,  G  Pai.  139;  How- 


in  a  second  action  becanse  not  jDleaded 
in  the  first.  Ilackworth  v.  ZoUars, 
30  Iowa,  432. 

^Foster  v.  Milliner,  50  Barb.  385. 

)03 


ard  V.  Mitchell,  U  Mass.  241;  McNair 
11.  O 'Fallon,  8  Miss.  188  ;  Isaacs  v. 
Clark,  12  Verm.  602;  Woodhouse  v. 
Williams,  3  Dev.  508. 


3( 


Chap.  XII.] 


NEGLECT   TO   PLEAD. 


gg2S3-28-i 


if  in  an  action  of  trespass  quare  clansum,  tlio  defendant 
plead  title  in  a  third  person,  under  whom  he  claims  without 
showing  how  such  title  was  acquired,  nor  when  it  accrued, 
the  plaintiff  may,  at  the  trial,  give  in  evidence  an  award 
against  the  title  of  such  third  person,  without  pleading  it.' 
Where  the  declaration  contains  no  intimation  of  the  source 
of  pkiintiff's  title,  the  defendant  is  not  bound  to  plead  an 
estoppel,  nor  to  show  that  the  title  claimed  by  plaintiff  pro- 
ceeds from  a  given  source,  and  then  intercept  it  by  pleading 
a  former  adjudication.  And  if  an  estoppel  by  judgment, 
or  otherwise,  form  part  of  the  muniment  of  either  party's 
title,  he  is  no  more  bound  to  set  it  forth  in  his  pleadings 
than  he  is  to  insert  therein  any  of  his  title  deeds. ^ 

g  284.  Neglect  to  Plead  former  Judgment. — According 
to  the  practice  at  common  law,  a  judgment,  though  not  pleaded 
as  an  estoppel,  could  be  given  in  evidence  under  the  general 
issue. ^  Upon  this  point  there  is  no  doubt;  but  upon  the 
question,  of  what  effect  is.to  be  given  to  it  when  so  put  in 
evidence,  great  contrariety  of  opinion  exists.  In  the  cele- 
brated case  against  the  Duchess  of  Kingston,*  a  case  more 
frequently  cited,  we  think,  than  any  other  ever  decided  in 
an  English  Court,  a  former  adjudication  is  spoken  of  as 
being  "  as  a  plea,  a  bar;  and  as  evidence,  conclusive." 
AVhether  the  judge  writing  the  opinion  in  this  case  under- 
stood that  a  former  adjudication  was  "as  evidence  conclu- 
sive," though  not  pleaded  as  an  estoppel,  or  whether  he  in- 
tended the  language  employed  by  him  should  be  applicable 
only  to  those  cases  in  which  the  conclusive  effect  of  a  former 
judgment  was  invoked  by  the  pleadings,  is  unknown;  but  it 
is  probable  that  he  designed  merely  to  state  to  what  extent 
a  former  adjudication  might  prevail,  if  properly  insisted 
upon,  by  a  party  entitled  to  its  benefits,  and  that  he  had 
no  intention  of  pointing  out  the  means  essential  to  securing 
those  benefits.  However  this  may  be,  it  is  certain  that  a 
decided  preponderance  of  the  authorities  in  England  sus- 
tains the  view  that  the  record  of  a  former  action,  if  given 
m  evidence  under  the  general  issue,  when  it  might  have 


1  Shc'lton  V.  Alcox,  11  Conn.  240. 
^  Adams  u.  Barnes,  17  Mass.  3G5. 


3  Cbitty  on  PL  198. 

i  20  Howard's  State  Trials,  478. 

309 


§284  LAW  OF  JUDGMENTS.  [Cliap.  XII. 

been  pleaded  as  a  bar,  "is  not  conclusive,  but  is  a  mere  mat- 
ter of  argument  or  inference"  in  favor  of  the  party  present- 
ing it.'  In  tlic  United  States,  however,  the  authority  of  the 
English  decisions  on  this  subject  lias  not  been  universally 
respected.  Still,  there  are  a  number  of  cases,  in  this  coun- 
tiy,  asserting  that  a  "judgment  which  if  plead  would  have 
been  a  perfect  bar,  is,  when  given  in  evidence,  under  the 
general  issue,  not  conclusive  on  the  jury,  but  only  evidence 
to  be  weighed  by  them,'"-  "because  if  not  plead  the  matter 
is  left  at  large,  and  the  party  may  think  he  can  do  better 
than  he  did  before."^  In  New  York  the  cases  are  hardly 
consistent  with  one  another.  In  JVrigJd  v.  Butler  (6  Wend. 
284),  it  is  said:  "In  actions  where  the  former  recovery  can 
be  set  up  in  pleading  by  way  of  estoppel,  the  party  must 
plead  it,  or  it  will  not  be  conclusive  on  the  jury  in  the  sec- 
ond action  ;  but  in  actions  of  assumpsit,  etc.,  where  the 
party  has  no  opportunity  to  plead  the  former  verdict  as  an 
estoppel,  the  record  thereof  may  be  given  in  evidence,  and 
is  conclusive  and  binding  on  the  party,  the  Court  and  the 
jury,  as  to  every  fact  decided  by  the  former  verdict."  In 
Wood  V.  Jackson  (8  Wend.  10,  35)  .Chancellor  Walworth 
states  that  "There  is  a  certain  class  of  cases  in  which  the 
party  may  avail  himself  of  an  estoppel,  by  pleading  the 
same  in  bar  to  a  suit,  or  in  reply  to  allegations  set  out  in  a 
plea.  In  such  cases,  if  he  neglects  to  make  the  objection 
in  that  manner,  and  puts  the  facts  directly  in  issue,  with- 
out pleading  the  former  verdict  or  decree  as  an  estoppel, 
the  jury  may  find  according  to  the  truth  of  the  case,  on  the 
issue.  But  this  principle  is  only  applicable  to  cases  ivhere  spe- 
cial pleudincj  is  required;  it  does  not  extend  to  actions  of 
assumpsit  where  an  estoppel,  as  a  former  recovery  or  bar, 
is  embraced  within,  and  may  be  given  in  evidence  under 


1  Chitty's  PI.  198;  Outram  v.  More- 
■wood,  3  East.  346  ;  Vooght  v.  Winch> 
2  Barn,  and  Aid.  GG2;  Hannaford  v. 
Hunn,  2  Carr  &  P.  148;  Magxatla  v. 
Hardy,  4  Biug.  N.  C.  782  ;  Doe  v. 
Huddart,  2  C.  M.  &  E.  31G  ;  Fever- 
sham  V.  Emersou,  11  Exch.  385  ; 
Dimes  v.  G.  J.  Canal  Co.,  9  Q.  B. 
469,  517 ;  Harper  t\  Hooper,  McCler. 
&  Young's  Exch.  509. 

310 


'■'  Cleaton  v.  Chambliss,  6  Eand.  86; 
Howard  v.  Mitchell,  14  I\Iass.  242  ; 
Bartholomew ^'.  Candee,  14  Pick.  167; 
Long  V.  Long,  5  Watts,  103;  Smith  v. 
Elliott,  9  Barr,  345;  Adams  v.  Barnes, 
17  Mass.  3G8  ;  Picquet  v.  McKay,  2 
Blackf.  465. 

» Eedmond  v.  Coffin,  2  Dev.  Eq. 
445. 


Cliai^.  XII.]  NEGLECT  TO   PLEAD.  g2S-i 

tlio  general  issue."     "Neither  docs  it  apply  to  cases  wliere 
the  plaintiff's  title  is  by  estoppel ;  or  where  the  party  rely- 
ing upon  the  estoppel  had  no.  opportunity  to  plead  the  same 
specially,  as  a  bar.     From  these  principles  it  necessarily 
follows  that  in  ejectment,   where  special  pleading  is  not 
allowed,  the  defendant,  in  support  of  his  possession,  may 
give  in  evidence  any  matter  which  would  have  operated  as 
a  bar,  if  pleaded  by  him  by  way  of  an  estoppel  to  a  real 
action."     These  cases  and  some  others  in  the  same  State, ^ 
incline  to  the  view  that  in  those  actions  where  a  judgment 
can  properly  be  given  in  evidence  under  the  general  issue, 
its  effect  is  conclusive,  unless  the  case  is  such  that  some 
special  pleading  is  allowed  ;   and,   taken  altogether,  they 
rather  affirm  than  deny  the  English  rule  itpon  the  subject. 
The  greater  number  of  the  American  cases,  however,  repu- 
diate the  theory  that  a  former  adjudication  can,  in  any 
event,  be  properly  admitted  in  evidence  for  the  purpose  of 
determining  any  issue  in  the  second  action,  by  proving  how 
the  same  issue  was  determined  in  the  first,  without  being 
absolutely  conclusive  so  far  as  it  is  applicable  to  the  second 
action.      The  judgment,  if  admitted  under  the  pleadings, 
must  be  received  as,  what  it  purports  to  be — a  final  deter- 
mination of  the  rights  of  the  parties.     The  reasons  for  this 
departure  from  English  precedents  are  thus  forcibly  and 
convincingly  stated  by  Kennedy,  J.,  in  the  case  of  3Iarsh 
V.  Pier  (4  Eawle,  273)  :  "The  maxim,  nemo  debet  bis  vexari, 
si  constat  cnrice  quod  sit  pro  una  et  eadem  causa,  being  consid- 
ered, as  doubtless  it  was,  established  for  the  benefit  and 
protection  of  the  party,  he  may  therefore  waive  it ;  and  un- 
questionably, so  far  as  he  is  individually  concerned,  there 
can  be  no  rational  objection  to  his  doing  so.     But  then  it 
ought  to  be  recollected  that  the  community  has  also  an 
equal  interest  and  concern  in  the  matter,  on  account  of  its 
peace  and  quiet,  which  ought  not  to  be  disturbed  at  the 
v\dll  and  pleasure  of  every  individual,  in  order  to  gratify 
vindictive  and  litigious  feelings.     Hence,  it  would  seem  to 
follow,  that  whenever,  on  the  trial  of  a  cause,  from  the  state 
of  the  pleadings  in  it,  the  record  of  a  judgment  rendered  by 

1  Tiurt  V.  Stemburgh,  4  Cow.  559  ;  Gavduer  v.  Buckbee,  3  Cow.  120;  Miller 
r.  Mauice,  6  Hill,  lU. 

oJ 


Sll 


^23-1  LAW  OF  JUDGMENTS.  [Chap.  XII. 

a  competent  tribunal  upon  tlie  merits  in  a  former  action 
l)etween  the  same  parties,  or  those  claiming  under  them,  is 
properly  given  in  evidence  to  the  jury,  that  it  ought  to  be 
conclusively  binding  on  both  court  and  jury,  and  to  pre- 
clude all  further  inquiry  in  the  cause;  otherwise  the  rule  or 
maxim  expedit  repuhlica  ut  sit  finis  litium,  which  is  as  old  as 
the  law  itself,  and  a  part  of  it,  will  be  exploded  and  entirely 
disregarded.  But  if  it  be  a  part  of  our  law,  and  it  seems  to 
be  admitted  by  all  that  it  is,  it  appears  to  me  that  the  Court 
and  jury  are  clearly  bound  by  it,  and  not  at  liberty  to  find 
against  such  former  judgment.  A  contrary  doctrine,  as  it 
seems  to  me,  subjects  the  public  peace  and  quiet  to  the  will 
or  neglect  of  individuals,  and  prefers  the  gratification  of  a 
litigious  disposition  on  the  part  of  suitors,  to  the  preserva- 
tion of  the  public  tranquillity  and  happiness.  The  result, 
among  other  things,  would  be,  that  the  tribunals  of  the 
State  would  be  bound  to  give  their  time  and  attention  to 
the  trial  of  new  actions  for  the  same  causes,  tried  once  or 
oftener,  in  former  actions  between  the  same  parties  or  priv- 
ies, without  any  limitation  other  than  the  will  of  the  parties 
litigant,  to  the  great  delay  and  injury,  if  not  exclusion  occa- 
sionally, of  other  causes  which  never  have  passed  in  rem 
judlcatem.  The  effect  of  a  judgment  of  a  court  having  juris- 
diction over  the  subject  matter  of  controversy  between  the 
parties,  even  as  an  estoppel,  is  very  different  from  an  estop- 
pel arising  from  the  act  of  the  party  himself  in  making  a 
deed  of  indenture,  etc.,  which  may  or  may  not  be  enforced, 
at  the  election  of  the  other  party;  because,  whatever  the  par- 
ties may  have  done  by  compact,  they  may  undo  by  the  same 
means.  But  a  judgment  of  a  proper  court,  being  the  sen- 
tence or  conclusion  of  law  upon  the  facts  contained  within 
the  record,  puts  an  end  to  all  further  litigation  on  account 
of  the  same  matter,  and  becomes  the  law  of  the  case,  which 
cannot  be  changed  or  altered,  even  by  consent  of  the  par- 
ties, and  is  not  only  binding  upon  them,  but  upon  the  courts 
and  juries  ever  afterward,  so  long  as  it  shall  remain  in  force 
and  unreversed."  In  a  case  in  Maine,  the  Supremo  Court, 
declining  to  pass  upon  the  question,  because  it  was  not  then 
material,  stated  that  when  it  necessarily  arose,  they  should 
give  it  a  very  careful  consideration  before  they  would  hold 
312 


Chap.  XII.]  NEGLECT  TO  PLEAD.  §284 

"that  the  conclusiveness  of  judgments  and  the  consequent 
peace  of  the  community,  and  the  convenience  of  fresh  liti- 
gants shall  depend  upon  the  option  of  persons  litigiously 
disposed,  or  iipon  the  accuracy  of  pleaders."^  Following 
this  intimation,  and,  it  is  to  be  presumed,  upon  careful  con- 
sideration, this  court  subsequently  decided  that  a  former 
judgment  might  be  pleaded  as  an  estoppel,  or  given  in  evi- 
dence under  the  general  issue,  and  that  whichever  course 
vras  pursued,  the  result  is  the  same.  ^  In  Illinois,  the  courts 
"do  not  sanction  the  technical  distinction  which  makes  a 
former  recovery  a  bar  only  when  pleaded  as  an  estoppel  ;"'^ 
and  believe  that  the  rule  adopted  by  them  "is  doubtless 
the  safer  rule,  and  the  one  alone  upon  which  an  end  may  be 
made  to  litigation,  and  unsuspecting  innocence  and  right 
may  repose  regardless  of,  and  undisturbed  by,  technical 
rules  of  pleading."*  In  Tennessee,''  Vermont,^  Iowa,'  Mary- 
land,* and  New  Hampshire,^  any  judgment  or  decree,  when- 
ever properly  in  evidence  before  the  court  or  jury,  is  as  con- 
clusive as  if  specially  pleaded  as  a  bar. 

Aside  from  considerations  of  public  policy,  which  seem  to 
have  influenced  some  of  the  American  decisions  just  cited, 
they  seem  to  be  more  sustainable  than  the  line  of  decisions 
with  which  they  are  in  conflict.  If  we  concede  that  princi- 
ples founded  in  public  policy  do  not  prohibit  the  parties  to 
an  adjudication  from  re-opening,  by  mutual  consent,  mat- 
ters already  litigated,  and  from  indulging  their  litigious 
dispositions  to  an  unlimited  extent,  it  does  not  follow  that 
a  court  or  jury  should  be  at  liberty  to  re-investigate  matters 
which  have  been  before  judicially  investigated  and  deter- 
mined, when  that  determination  is  properly  placed  before 
such  court  or  jury  to  influence  the  decision  in  the  second 
action.  If  the  judgment  is  admissible  in  any  case  under 
the  general  issue,  its  admission  ought  to  produce  some  well 
defined  and  unavoidable  result.     It  ought  to  bo  received  as 


1  Sturtevant  v.  Kanclall,  53  Mai.  14'J. 

2  Walker  r.  Chase,  53  Mai.  258. 

3  Yallaudingliam  v.  Kyan,  17  111.  25. 

4  Gray  v.  Gillilan,  15  111.  453. 

5  Warwick  v.  Underwood,  3  Head. 
238. 

6  Blodgett  V.  Jordan,  6  Verm.  580. 


"  Geoi'go  V.  Gillespie,  1  Iowa,  421. 

8  Beall  I'.  Pearre,  12  Md.  550;  Shaf- 
fer V.  Stonebraker,  4  G.  &  J.  345. 

9  Chamberlain  v.  Carlisle,  6  Foster, 
540  ;  King  v.  Chase,  15  N.  H.  9;  Tay- 
lor u.  Dustin,  43N.H.  493. 

313 


§284  LAW   OF   JUDGMENTS.  [Chap.  XII. 

conclusive  of  all  the  questions  settled  by  it,  or  rejected  al- 
together. To  admit  it  in  evidence,  with  the  understanding 
that  it  may  be  regarded  or  disregarded,  at  the  pleasure  of 
the  court  or  of  the  jury,  is  to  establish  a  rule  which  author- 
izes the  final  determination  of  the  rights  of  parties,  not  ac- 
cording  to  settled  and  uuvariable  principles,  but  at  the  mere 
caprice  of  men.  Every  law  and  every  interpretation  of  law 
must  be  imperfect  and  unjust,  if,  when  applied  to  identical 
facts,  it  may  result  in  diametrical  judgments.  Under  the 
decisions,  leaving  the  effect  of  a  former  recovery  to  the  ca- 
price or  discretion  of  a  court  or  a  jury,  it  may  happen,  that 
of  two  actions,  each  supported  by  the  same  evidence  and 
involving  the  same  issues,  a  part  of  the  evidence  in  each 
case  being  the  record  of  a  former  recovery,  one  action  may 
result  in  a  judgment  for  plaintiff  and  the  other  in  a  judg- 
ment for  defendant,  and  yet  the  two  adverse  judgments  be 
equally  consistent  with  law.  If  the  failure  to  plead  a  for- 
mer adjudication  in  bar  is  a  waiver  of  the  benefits  accruing 
under  it,  then  it  should  not  be  allowed  to  be  placed  in  evi- 
dence in  the  second  action.  But  why  should  a  party  be 
deemed  to  waive  a  matter  while  his  pleadings  are  such  that 
he  may  lawfully  present  it  in  evidence  before  the  jury? 
Why  should  the  court  or  jury  be  at  liberty  to  consider  a 
matter  as  waived  which  is  included  in  the  issues,  estab- 
lished by  the  evidence,  and  relied  upon  at  the  argument  ? 
The  English  rule  is  inconsistent  with  itself.  It  treats  a 
former  adjudication  as  inconclusive,  because  not  specially 
pleaded ;  but  permits  it  to  be  given  in  evidence,  in  order  that 
the  jury  may,  if  they  choose,  give  it  as  conclusive  an  effect 
as  if  it  were  pleaded  specially.  In  the  United  States  this  in- 
consistency will,  in  time,  undoubtedly  disappear.  In  some 
of  the  States  the  rules  of  pleading  are  now  so  altered  as  to 
require  a  former  adjudication  to  be  specifically  alleged  by 
the  party  relying  upon  it,  before  it  can  be  given  in  evidence. 
Other  States  will  probably  adopt  the  same  rule.  But  where 
the  common  law  system  of  pleading  is  retained,  a  judgment 
will,  no  doubt,  at  some  not  far  distant  day  of  the  future, 
whenever  received  in  evidence,  be  carried  into  effect  irre- 
spective of  the  question  whether  it  was  admitted  under  the 
general  issue  or  in  support  of  a  special  plea. 
314 


Chap.  XII.]  SUITS  FOR  PAYMENTS.  gp8-la-285 

PAllT  VI.— ACTIONS  TENDING  TO  CONTEADICT   FOEMER  JUDG- 
MENT. 

§  2S4:a. — Defenses  and  Causes  of  Action  once  presented 
and  considered  can  not  be  again  asserted  in  another  snit  Avith- 
out  ci  violation  of  the  principles  of  res  judicata.  But  the 
obstinacy  with  which  litigants  press  their  claims  upon  the 
attention  of  courts,  is  such  that  it  is  not  uncommon  for 
matters  once  fully  determined  to  be  again  made,  or  at  least 
attempted  to  be  made,  the  subjects  of  judicial  inquiry.  Some- 
times the  circumstances  attending  the  former  decision  are 
such  as  to  render  the  application  of  the  law  of  res  judicata 
apparently  a  matter  of  great  injustice.  Hard  cases  have 
long  been  characterized  as  the  quick  sands  of  the  law.  Such 
cases  are  quicksands  in  which  the  law  of  res  judicata  some- 
times sinks  so  far  that  the  judges  are  entirely  unable  to  see 
it,  or  even  to  remember  it.  Generally,  however,  such  is 
not  the  case;  and  the  instances  are  comparatively  few  in 
which  any  cause  of  action  or  any  matter  of  defense  is  al- 
lowed to  prevail  where  it  is  inconsistent  with  the  facts  neces- 
sary to  uphold  any  previous  adjudication  between  the  same 
parties.  Therefore  a  plaintiff  taking  judgment  for  too  small 
a  sum,  without  the  fraud  or  fault  of  his  adversary,  can  not 
maintain  a  subsequent  action  to  recover  the  remainder;^  nor 
can  a  defendant  avoid  the  effect  of  a  judgment  against  him 
by  showing  that  the  debt  on  which  it  was  based  was  void 
for  want  of  consideration,  or  that  such  debt  had  been 
merged  in  a  former  judgment." 

§  285.  Suits  for  Payments  not  Credited. — A  few  case^ 
have  been  decided,  mainly,  if  not  exclusively,  in  Massachu- 
setts, in  which  causes  of  action  have  been  recognized  and 
enforced,  in  direct  opposition  to  a  former  judgment.  In 
the  first  of  these  cases,  a  note  was  placed  in  the  hands  of 
an  attorney  for  collection.  After  collecting  a  portion  of  the 
sum  due,  he  failed  to  give  the  proper  credit,  and  thereafter 
sued  and  recovered  judgment  for  the  full  amount  of  the  note. 
The  debtor  was  permitted,  while  the  original  judgment  re- 
mained in  force,  to  maintain  an  action  against  the  attorney 
for  money  had  and  received,  on  the  ground,  that  when  the 

lEwing  i\  McNairy,  20  Ohio,  S.  31G.  j  SLewis  v.  Armstrong,  45  Geo.  131. 


O  1  f 

Jl5 


§§285-286  LAW  OF  judgments.  [Chap.  XII. 

attorney  received  the  payment,  there  arose  an  implied  trust 
that  ho  woukl  credit  it  on  the  note,  *  In  a  hiter  case,  the 
same  remedy  was  held  to  be  available  in  behalf  of  a  debtor 
against  whom,  after  reception  of  a  partial  paj'ment,  the 
creditor  had  taken  judgment  by  default  for  the  whole  sum.^ 
In  the  same  State,  A.,  having  obtained  judgment  against  B., 
and  extended  his  execution  upon  certain  real  estate,  thereby 
became  a  tenant  in  common  with  C.  A.  then  sued  C.  for  a 
share  of  the  rents  and  profits  of  the  estate,  and  obtained  a 
judgment,  which  C.  paid.  After  this,  A.'s  judgment  against 
B.  was  reversed  on  writ  of  error.  C,  while  the  judgment 
against  him  was  still  unaffected  by  any  proceeding  directed 
against  it,  was  permitted  to  recover  from  A.  the  money  paid 
to  obtain  its  satisfaction,  on  the  ground  that,  from  circum- 
stances occurring  since  the  payment  to  him,  A.  had  no  right 
to  retain  the  money.  ^  "Where  an  action,  on  a  judgment 
rendered  in  Kentucky,  was  brought  in  Texas,  the  defendant 
was  permitted  to  avoid  it,  in  part,  by  proving  that,  during 
the  progress  of  the  former  suit,  he  resided  in  the  last  named 
State;  that  he  jaaid  a  part  of  the  demand  before  judgment, 
pendente  lite,  and  reposed  confidence  in  the  plaintiff  in  Ken- 
tucky to  make  the  proper  credits,  who  had  failed  to  do  so."^ 

§  28G.  Suits  for  Credits  not  Allowed. — There  can  be 
no  doubt  that  these  decisions  are  in  direct  conflict  with  the 
true  rule  upon  the  subject;  that  they  were  induced  by  yield- 
ing to  the  hardship  of  the  particular  cases  in  which  they 
were  pronounced,  and  are  good  illustrations  of  the  maxim, 
"  that  hard  cases  make  bad  precedents."  '^  They  are  alto- 
gether inconsistent  with  a  vast  number  of  English  and 
American  authorities.  "  It  is  clear,  that  if  there  be  a  bona 
fide  legal  process  under  which  money  is  recovered,  although 
not  actually  due,  it  can  not  be  recovered  back,  inasmuch  as 
there  must  be  some  end  to  litigation.""     A  p>arty  having 


1  Fowler  u.  Shearer,  7  Mass,  l-i . 
8  Kowe  v.  Smith,  IG  Mass.  306.  See 
Loring  v.  Mansfield,  17  Mass.  394. 

3  Lazell  V.  Miller,  15  ]\Iass.  207. 

4  Clay  V.  Clay,  13  Tex.  195, 

e  Smith's  Lead.  Cas.  vol.  2,  p.  G67. 

6  Duke  de  Cadaval  v.  Collins,  4.  Ad. 

&  El.  8G7. — A  party   who   has  made 


payments  on  articles  sold,  and  who  in 
an  action  for  the  price  of  such  articles 
failed  to  prove  such  payments,  cannot 
maintain  an  action  to  recover  back 
the  amount  so  paid  by  him.  Wilson 
('.  Cameron,  1  Kerr,  (New  Brunswick) 
542. 

316 


Chap.  XII. J     SUITS  FOE  CREDITS  NOT  ALLOWED.  g28G 

found  ii  receipt  for  a  debt  which  ho  liad  been  compelled  to 
pay  by  judgment,  having  sought  to  recover  back  the  money 
paid,  Lord  Kenyon,  before  Avhom  the  case  came,  said:  "I 
am  afraid  of  such  a  precedent.  If  this  action  could  bo 
maintained,  I  know  not  what  cause  of  action  could  ever  be 
at  rest.  After  recovery  by  process  of  law,  tJiere  would  be 
no  security  for  any  person."  ^  To  a  similar  effect  is  the 
opinion  in  a  recent  English  case,  denying  the  right  to  re- 
cover back  part  of  a  debt  paid  before  judgment,  but  which 
plaintiff  did  not  credit.  "  It  is  not,"  said  the  court,  "  com- 
petent to  either  party  to  an  action,  to  aver  anything  either 
expressing  or  importing  a  contradiction  to  the  record,  which, 
while  it  stands,  is,  as  between  them,  of  uncontrollable  ver- 
ity ."  -  Substantially  the  same  view  is  taken  in  nearly  all  of 
the  United  States.  The  only  remedy  of  the  defendant  in 
such  cases,  is  by  appeal,  new  trial,  proceedings  in  chancery, 
or  in  the  nature  of  an  aiidita  querela.^  And  no  doubt  equity 
would  not  interfere  in  his  behalf,  unless  the  failure  to  pre- 
sent his  defense  of  payment  was  occasioned  by  accident, 
surprise,  or  mistake,  or  the  fraud  of  the  opposite  party,  un- 
mixed with  uny  contributory  fault  or  negligence  of  the  com- 
plainant.* In  the  case  of  Binck  v.  Wood,  43  Barb.,  p.  315, 
it  was  decided  that  the  maker  of  a  promissory  note,  against 
whom  a  judgment  by  default  had  been  taken,  could  not 
recover  for  any  payment  made  on  the  note  prior  to  the  suit, 
and  not  considered  as  a  credit  in  entering  judgment.  The 
authorities  on  the  subject  were  reviewed.  The  early  cases 
in  Massachusetts  were  thought  to  be  inconsistent  with  the 
later  case  of  Loring  v.  Mansfield,  17  Mass.  394.  The  case 
of  Smitli  V.  Wilkes,  26  Barb.  463,  was  overruled;  and  the 
other  cases  in  New  York,  as  well  as  those  in  the  other 
States,  and  in  England,  were  declared  to  unanimously  sus- 
tain the  view,  that  while  a  judgment  is  permitted  to  stand, 
no  money  paid  upon  it  can  be  recovered.  If,  after  the  ren- 
dition of  a  judgment,  any  facts  occur  making  it  clear  that 


1  MaiTiott  V.  Ilamptou,  7  T.  K.  269; 
see,  also,  riiillips  v.  Huutcr,  2  II. 
Bla.  410. 

2  Huffner  i'.  AUeu,  12  Jur.  N.  S. 
930,  aud  2  Law  R.  Exc.  Cases,  15. 

3,Kirklan  c.  Broun,  4  Humph.  171; 


Corbet  v.  Evans,  25  Pa.  St.  310;  Tilton 
I'.  Gordon,  1  N.  n,  33;  Le  Grand  v. 
Francisco,  3  Munf.  83;  James  u.  Cavit, 
2  Brev.  17-1. 

•t  Doyle  V,  Eeilly,  18  Iowa,  108. 


o 


17 


g^2SG-28S  LAW  OP  JUDGMENTS.  [Chap.   XII. 

the  judgment  slioulcl  not  be  enforced,  relief  may  be  given 
in  eqnity,  or  an  action  for  money  had  and  received  ma}^  be 
maintained.^  Even  in  Massachusetts,  no  action  can  be 
sucessfully  prosecuted  to  recover  back  usurious  interest 
included  in  a  judgment  which  defendant  has-satisfied.  ^ 

^  287.  Suits  for  Money  Paid  on  Judgments  -where  De- 
fenses are  Concealed. — A.  brought  an  action  against  B.  to 
recover  the  insurance  on  alost  vessel,  and  secured  a  judgment, 
which  was  paid.  B.  subsequently  commenced  suit  to  recover 
back  the  money  thus  paid,  on  the  ground  that  the  vessel 
was  already  lost  when  the  insurance  was  effected  ;  that  he 
did  not  know  of  such  loss  when  the  former  judgment  was 
obtained,  and  that  such  loss  was  fraudulently  concealed  by 
A.  The  former  judgment  was  determined  to  be  a  bar,  be- 
cause ' '  provision  being  made  by  the  statute  for  a  review 
of  judgments  within  a  time  thought  reasonable  by  the  Legis- 
lature, it  must  be  supposed  that  a  limit  was  intended  of  the 
right  of  parties  to  complain  of  the  wrong  done,"  and  because 
no  reported  case  could  be  found  "in  which  the  merits  of  a 
decided  cause  have  been  allowed  to  be  re-examined  in  any 
independent  action. "^  If  an  agreement  be  made  to  extend 
the  time  for  payment  of  a  note,  this  constitutes  a  matter  of 
defense,  which,  if  not  presented,  is  lost.  No  action  can, 
therefore,  be  sustained  for  a  violation  of  the  agreement. 
But  it  is  otherwise  if  the  agreement  be  not  to  sue  for  a 
limited  time.^  A  quantity  of  wheat  was  purchased,  and  a 
nominal  sum  j)aid  to  bind  the  bargain.  The  vendee  after- 
wards sued  the  vendor  for  non-delivery,  and  recovered  judg- 
ment for  full  value  of  the  wheat.  The  vendee  then  sued  for 
the  price  agreed  to  be  paid  for  the  wheat.  The  action,  it 
was  decided,  could  not  be  maintained.  The  vendee  should 
have  insisted  on  a  proper  measure  of  damages.  Not  having 
done  so,  he  could  not  succeed  in  a  cross  action.  ^ 

§  288.  Actions  by  Third  Persons.  —  The  general  rule 
that  the  law  will  not  allow  money  paid  upon  legal  jjrocess  to 


1  Smiths.  McCluskey,  45  Barb.  GIO. 

2  Thatcher  v.  Gammon,  12  Mass. 
2G8;  Footman  v.  Stetson,  32  Maine, 
17. 

318 


3  Homer  v.  Fish,  1  Pick.  436. 

4  Pearl  v.  Wells,  6  Wells,  291. 

5  Dey  V.  Dox,  9  Wend.  129. 


Chap.  XII.]     SUITS  FOR  OBTAINING  JUDGMENTS.  ^^288-289 

be  recoYcred  back,  does  not  apply  where  the  transaction  is 
res  inter  alios  acta.  The  assignee  of  a  bankrupt  not  being  in 
privity  Avith  him,  may  recover  money  taken  from  the  bank- 
rupt, under  execution,  after  his  act  of  bankruptcy.' 

§  289.  Suits  for  Obtaining  Judgments  by  Fraud,  Con- 
spiracy or  Perjury. — The  settled  policy  of  the  law,  forbid- 
ding that  a  matter  once  adjudicated  shall  be  again  drawn  in 
issue  while  the  former  adjudication  remains  in  force,  does 
not  permit  the  prosecution  of  an  action  for  obtaining  a 
judgment  by  false  and  fraudulent  practices,^  or  by  false  and 
forged  evidence.^  Neither  can  a  party  against  whom  judg- 
ment has  been  recovered,  sustain  an  action  against  his  ad- 
versary, and  the  witnesses  for  damages  occasioned  by  their 
conspiring  together  and  procuring  a  judgment  by  fraud  or 
perjury,  as  long  as  judgment  remains  in  force  and  unre- 
versed; because  the  charges  made  in  the  second  action  are 
conclusively  negatived  by  the  former  adjudication.*  '\Miere 
in  process  of  foreign  attachment,  a  judgment  has  been  en- 
tered, discharging  the  trustee  on  his  disclosure,  the  plaintiif 
cannot  sustain  an  action  on  the  case  against  the  trustee,  for 
obtainiug  his  discharge  by  falsehood  or  fraud  in  his  dis- 
closure, and  by  fraudulent  collusion  with  the  principal 
defendant.  The  action  against  the  trustee  would,  if  it  were 
allowable,  involve  a  re-examination  of  the  questions  deter- 
mined by  his  discharge  when  summoned  in  the  former  suit.^ 
The  defendant,  in  a  judgment  of  foreclosure,  cannot  sus- 
tain an  action  to  recover  on  account  of  usurious  interest 
included  in  the  judgment.  The  fact  of  usury,  if  it  existed, 
was  available  as  a  defense  in  the  former  suit;  and  whether 
pleaded  as  a  defense  or  not,  is  conclusively  negatived  by  the 
decree  of  foreclosure,  c  In  Kentucky  money  coerced  from 
defendant  through  a  judgment  procured  by  fraud,  may  be 
recovered   back  from  him  by  an  action  in  equity  without 

1  Follct   V.  Hoppe,   5  0.  B.  2l3;|citing  Damport    v.    Sj-mpsoii.    Cro 


Phillips  V.  Huuter,  H.  Bl.i.  0-12, 
'  Hillsborough  v.  Nichols,  46  N.  H. 

379. 

3Note2G5,  by  C.  H.   &  E.  to  Ph. 

Ev. 

4Duulap  v.  Glidden,  31  Mai.  435, 


Eliz.  520,  and  Eyres  v.Sedgwicke,  Cro. 
Jac.  GOl. 

5  Lyford  v.  De  Merritt,  32  N.  H. 
234. 

6  Heath  v.  Frackleton,  20  Wis.  320. 

319 


§§289a-292  law  of  judgments.  [Chap,  XII. 

vacating   or   otherwise   setting    aside    the    original    judg- 
ment.* 

§  289^  A  judgment  for  phiintiff  in  an  action  for  goods 
sold  and  delivered,  is  a  bar  to  a  subsequent  suit  by  defend- 
ant for  non-delivery  of  the  same  goods.  - 

g  290.  Motion  for  Satisfaction. — The  recovery  of  judg- 
ment, being  conclusive  of  the  amount  due,  and  that  the 
plaintiff  is  the  person  to  whom  it  is  due,  a  motion  for  entry 
of  satisfaction  on  the  ground  that  plaintiff  was  not  the  real 
party,  and  that  the  cause  of  action  belonged  to  another  per- 
son, to  whom  payment  has  been  made  since  the  entry  of 
judgment,  is  inconsistent  with  the  judgment.  Hence  no 
evidence  in  support  of  the  motion  can  be  heard. '^ 

§  291.  Failure  to  Give  Credit  as  a  Consideration  for  a 
Promise. — While  the  defendant  cannot,  leaving  the  judg- 
ment in  force,  recover  of  plaintiff  a  sum  which  ought  to 
have  been  credited  but  was  not,  it  seems  that  a  promise 
made  after  judgment,  to  allow  credit  for  a  payment  made 
prior  to  judgment,  may  be  proved  by  defendant  in  an  action 
against  him  on  the  judgment.  This  evidence  was  consid- 
ered as  admissible,  on  the  ground  that,  without  directly 
contradicting  the  judgment,  it  disclosed  a  state  of  facts 
constituting  suflQcient  consideration  for  the  promise  of  the 
plaintiff  to  credit  the  amount,  and  that  such  amount  was  to 
be  treated  as  money  paid  on  the  judgment."^  In  this  in- 
stance a  consideration  for  the  promise  to  credit  on  the  judg- 
ment was  essential  to  the  defendant's  partial  defense  to  the 
second  action.  In  order  to  establish  this  consideration,  the 
court  listened  to  evidence  whose  only  object  was  to  show 
that  the  former  judgment  was  unjust,  and  that  not  to  take 
advantage  of  its  unjustness,  was  a  sufficient  moral  obliga- 
tion to  sustain  the  promise.  In  proving  this  consideration, 
it  therefore,  appears  to  me,  that  the  former  judgment  was 
assailed,  and  the  principle  of  res  judicata  violated. 

§  292.     Cases  in  -which  Recovery  Back  -was  Permitted. 
Where  A.  having   sued  B.,  who  settled,  paying  $3  as  a 


1  Ellis  V.  Kelly,   8  Bush  G21;  West 
f.  Kirby,  4  J.  J.  Marsh  5G. 

2  Smith  V.  Kelly,  2  Hull's  Eep.  217. 

3 


•■!  Mcrviu  V.  Parker,  18  Ala.  241. 
*  Thayer  v.  Mowry,  36  Mai.  287. 


320 


Chap.  XII.]  DISTINCTIONS.  §§  292-293 

full  discL.arge  of  A.'s  claim,  who  thereupon  ap;reecl  to  dis- 
miss his  suit,  but  who,  instead  of  doing  so,  took  judgment 
for  $25,  B.  was  permitted  to  maintain  an  action  for  damages, 
in  not  dismissing  according  to  his  agreement.  '  No  doubt 
that,  although  the  second  suit  is  predicated  upon  matters 
which  might  have  been  used  as  a  defense  in  the  first,  yet  if  it 
involves  no  inquiry  into  the  merits  of  the  former  judgment, 
and  is  sustainable  on  grounds  entirely  independent  of  such 
judgment,  the  rule  inhibiting  re-litigation  of  decided  issues 
is  in  no  danger  of  violation.  But  great  contrariety  of  opin- 
ion is  likely  to  become  manifest  in  deciding  whether  a  sec- 
ond suit  is  sustainable  on  grounds  not  involved  in  the  first, 
and  actions  will  no  doubt  occasionally  be  prosecuted  with 
success,  and  result  in  a  seeming  disregard  of  some  former 
adjudication.  Thus,  in  IVJiitcomb  v.  Williams,  4  Pick.  228, 
the  plaintiff,  having  purchased  goods  of  the  defendants, 
paid  them  partly  in  cash  and  partly  by  his  note.  He  after- 
wards discovered  that  he  had  paid  for  more  than  he  received; 
but,  nevertheless,  he  suffered  judgment  to  be  taken  against 
him  on  the  note,  without  interposing  his  defense  of  want  of 
consideration.  He  then  sued  to  recover  back  the  amount 
paid  on  this  judgment,  and  prevailed,  because,  in  the  opin- 
ion of  the  court,  the  giving  of  the  note  was  equivalent  to 
payment  for  the  goods,  and  a  cause  of  action  immediately 
arose,  and  steered  clear  of  the  note  and  the  judgment 
thereon;  and  though  the  mistake  might  have  been  corrected 
in  the  suit  on  the  note,  jet  that  the  plaintiff  had  a  right  of 
election,  as  in  cases  of  set-off. 


PART  VII.— THE  EFFECT  OF  JUDGMENTS  TNT  VARIOUS  ACTIONS. 

FIKST— IN  ACTIONS  INVOLVING  TITLE  TO,  OR  THE  POSSESSION  OP,  KEAL  rSTATE. 

I  293.  Distinction  between  Application  of  Res  Judicata 
to  Real  and  to  Personal  Actions. — The  high  regard  of  the 
people  among  whom  the  common  law  grew  into  being  for 
real  property,  evinced  itself  in  a  vast  variety  of  ways  in  the 
different  branches  of  that  law;  and  in  none  of  those  branches 
did  it  make  itself  more  evident  than  in  that  regulating  the 

1  Cobb  V.  Curtis,  8  Jobus.  470. 

(21)  321 


g293  LAW  OF  JUDGMENTS.  [Chap.  XII. 

effect  of  former  adjudications.  The  pursuit  of  any  of  tlie 
forms  of  personal  action  to  a  judgment  on  the  merits,  com- 
pletely barred  all  other  actions  based  on  the  same  right,  in 
every  other  form.  But  that  the  law  gave  "consecutive  rem- 
edies for  injuries  to  real  estate  is  recognized  in  all  the  books 
that  treat  on  real  actions.  It  is  stated  by  Booth,  in  the 
first  j)age  of  his  book.  He  recommends  beginning  with  the 
lower  rather  than  with  the  higher  remedy;  for,  he  says,  'a 
recovery  in  that  of  the  lower  nature  will  not  be  a  bar  to  an 
action  of  a  higher  nature,  and  therefore  it  is  not  prudent  to 
set  forth  a  writ  of  right,  when  you  may  have  a  writ  of  entry.'  " 
He  cites  Ferrer's  case,  6  Coke,  7.  In  that  case,  it  was  de- 
cided that  there  was  a  difference  between  real  and  personal 
actions;  that  in  xDcrsonal  actions  the  bar  is  perpetual,  for 
the  plaintiff  can  not  have  an  action  of  a  higher  nature ;  but 
if  demandant  be  barred  in  a  real  action  by  judgment,  he 
may  have  an  action  of  a  higher  nature  to  try  the  same  right 
again.'  In  Viner's  Abridgement  it  is  said  that  "a  recovery 
in  assize  is  no  bar  to  a  formedon.  A  recovery  in  assize  is 
a  bar  to  another  assize,  but  not  in  mort  d'ancestor;  nor  is  a 
recovery  in  mort  d'ancestor  a  bar  to  a  writ  of  right.  "^  Un- 
der the  common  law  system  of  procedure,  "a  judgment, 
therefore,  in  each  species  of  action  is  final  only  for  its  own 
proper  purpose  and  object,  and  no  further.  A  judgment 
in  trespass  afiirms  the  right  of  possession  to  be,  as  between 
plaintiff  and  defendant,  in  the  plaintiff  at  the  time  the  tres- 
pass was  committed.  In  a  real  action  it  affirms  a  right  to 
the  freehold  of  the  land  to  be  in  the  demandant  at  the  time 
of  the  writ  brought.  Each  species  of  judgments,  from  one 
in  an  action  of  trespass  to  one  upon  a  writ  of  right,  is 
equally  conclusive  upon  its  own  subject  matter."''  "A  bar 
in  a  real  action,  by  judgment  on  demurrer,  confession,  ver- 
dict, etc.,  is  a  bar  to  any  other  action  of  the  like  nature  for 
the  same  thing,  which  is  the  case  likewise  in  personal  actions, 
but  in  personal  actions  the  bar  is  perpetual,  and  the  defend- 
ant has  no  remedy  but  by  writ  of  error  or  attaint.  In  real 
actions  on  the  contrary,  if  a  man  is  barred  by  judgment  in 
one  action,  he  may  bring  another  of  a  higher  nature,  and 

1  Arnold  V.  Arnold,  17  Pick.  4.  |    ^  Outram  v.  Morewood,  3  East,  346. 

2  Viuer's  Al).  Judgment,  Q. 

322 


Cliap.  XII.]  COMMON  rtECOVERY.  ^^293-295 

try  the  same  right  again.  Thus  if  barred  in  an  assize  of 
novel  disseisin,  yet  upon  showing  a  descent  or  other  special 
matter,  ho  may  have  an  assize  of  mort  cV ancestor,  a  writ  of 
aid,  or  hesaiel,  or  of  entry  sur  disseisin  to  his  ancestor.  So 
if  a  man  is  barred  in  a  formedon  in  descender,  3'et  ho  may 
have  a  formedon  in  reverter  or  remainder,  for  that  is  an  ac- 
tion of  a  higher  nature,  and  in  which  the  fee  simple  is  to  be 
recovered.  But  a  recovery  in  assize  is  a  bar  to  every  other 
assize,  and  in  a  Avrit  of  entry  in  nature  of  an  assize,  for  they 
are  both  brought  upon  the  plaintiff's  own  possession,  and 
are  of  the  same  nature,  and  a  judgment  in  a  writ  of  aiel  is  a 
bar  in  a  writ  of  hesaiel  or  cosinage,  for  they  are  both  ances- 
tral actions  of  the  same  nature."^ 

§  29-i.  Common  Recovery. — A  judgment  in  common  re- 
covery is  as  conclusive  as  in  any  other  case.  It  can  not  be 
collaterally  assailed,  except  for  fraud,  or,  as  in  other  real 
actions,  because  the  defendant  was  not  a  tenant  of  the  free- 
hold. If  there  be  a  proper  tenant  of  the  freehold,  all  the 
expectant  interests  are  involved  in  the  result.  The  issue  in 
tail  can  not  falsify  any  point  tried  by  the  action.  The  judg- 
ment is,  that  demandant  recover  his  title  to  the  land.  No 
one,  claiming  under  the  title  represented  by  the  tenant  in 
precipe,  can  avoid  this  judgment  otherwise  than  by  writ  of 
error.  If  there  was  no  such  judgment  against  the  voucher 
as  would  give  to  those  in  remainder  the  nominal  recompense 
w^hich  belongs  to  the  form,  this  does  not  avoid  the  judg- 
ment, but  only  affects  its  regularity.  ^ 

g  2Q5.  Ejectment  at  Common  Law. — At  common  law, 
a  judgment  in  ejectment  is  not,  in  any  case,  conclusive  upon 
the  title  of  cither  of  the  parties. ^  "It  is.  a  recovery  of  the 
possession  w'ithout  prejudice  to  the  right,  as  it  may  after- 
ward appear,  even  between  the  same  parties."^     Its  only 

1  Roscoe  on   Eeal  Actions,  p.  213,  Pollard    v.    Baylors,    G    Mnnf.    433; 
citing  Com.  Dig.  Action,  (K.  1  &  3) ; 
Kobiuson's  Case,  5  Eep.  32  b. ;  Cow- 
per  u.  Andrews,  Ilob.  4.0;  Mary  Port- 
ington's  Case,  10  Hep.  38  a. 

2  Kansley  v.  Stott,  '2G  Pa.  St.  126;  1 
EoUe,  447;  3  Bulst.  247. 

3  Mitchell  V.  Robertson,  15  Ala.  412; 


Holmes  v.  Carondolet,  38  Mo.  551; 
Smith  u.  Sherwood,  4  Conn.  27G;  Mo- 
ran  V.  Jessup,  15  Upper  Canada,  Q.  B. 
012;  Clubine  v.  McMuller,  11  U.  C. 
R.  230. 

*  Atkins  V.   Horde,    1    Bnrr.     114; 
Jackson  v.  Dieflfendorfif,  3  Johns.  270. 

323 


§§295-296  LAW  OF  jitdgments.  [Cliap.  XII. 

effect  "is  to  put  j)li^intiff  in  possession,  according  to  liis 
riglit  and  title  in  the  premises."'     "It  is  always  in  the 
power  of  the  party  failing,  whether  claimant  or  defendant, 
to  hring  a  new  action.     The  structure  of  the  record  also 
renders  it  impossible  to  plead  the  former  recovery  in  bar  to 
the  second  ejectment;  for  the  plaintiff  in  the  suit  is  only  a 
fictitious  person,  and  as  the  demise  term,  etc.,  may  be  laid 
in  many  different  ways,  it  can  not  be  made,  to  appear  that 
the  second  ejectment  is  brought  upon  the  same  title  as  the 
first."-     Several  verdicts  in  favor  of  the  same  party,  and 
his  adversary's  accepting  a  lease  and  promising  to  give  no 
more  trouble,  are  not  conclusive  against  the  latter.  ^     But, 
notwithstanding  its  inconclusive  effect,  a  judgment  in  eject- 
ment seems  to  have,  even  at  common  law,  been  admissible 
in  evidence  in  a  second  ejectment,  where  the  parties  were 
substantially  the  same  as  in  the  first;  and  to  have  been  al- 
lowed to  go  to  the  jury  in  the  second  action,  to  be  by  them 
treated  as  persuasive,  though  not  conclusive  evidence  of  the 
facts  upon  which  it  was  based.*     "The  inconclusiveness  of 
a  verdict  and  judgment  in  ejectment  is  due  to  the  form  of 
the  action,  not  to  the  character  of  the  subject  matter  of  the 
controversy.     There  is  no  charm  about  land,  as  land,  which 
relieves  it  from  the  operation  of  the  general  rule,  that  a 
judgment  between  same  parties,  or  their  privies,  directly 
upon  the  same  matter,  is  the  end  of  the  controversy.     Tliat 
it  is  an  estoppel  against  future  litigation  of  the  same  ques- 
tion, is  evident,  from  the  fact  that  a  fine,  a  common  recov- 
ery, a  simple  judgment  on  a  writ  of  right,  and,  indeed, 
judgments  in  any  real  action,  have  always  been  held  con- 
clusive."'' 

g  296.  In  Ejectment  upon  Confession.  —  In  Kentucky, 
the  fact  that  the  judgment  in  ejectment  was  rendered  upon 
confession,  does  not  make  it  more  conclusive  than  if  it  were 
based  on  the  verdict  of  a  jury;"  but  in  Pennsylvania,  the 

1  Minke  v.  McNamec,  30  Md.  294. 
"  Adams  on  Ejectment,  351. 

3  Richardson  v.  Stewart,  2  S.  &  E. 
87. 

4  Doe  V.  Scatou,  1  Tyr.  &  G.  19;  S. 
C.  2  C.  M.  k  C.  728;  Wright  u.  Ta- 
tham,  A.  &  E.  3;  Bull,  N.  P.  232  b; 

324 


Doe  V.Wright,  10  A.  &  E.  763;  Thomp- 
son V.  Hall,  31  Upper  Canada  Q.  B. 
375. 

'•>  Stevens  v.  Hughes,  31  Penn.  St^ 
381. 

«  Botts  u.  Shields,  3  LiLt.  32. 


Chap.  XII.J 


EJECTMENT  MODIFIED. 


§§29G-299 


rule  is  otherwise.  A  judgment  by  confession  in  ejectment 
is  there  "treated  as  a  solemn  judicial  confession  of  want  of 
title;  a  total  and  unconditional  surrender  of  the  field  of  con- 
troversy, and  as  such,  conclusive  forever  on  the  defendant 
and  all  his  privies."  ^ 

§  297.  In  Actions  for  Mesne  Profits. — In  actions  for 
mesne  profits,  a  judgment  in  ejectment  is,  as  against  de- 
fendant, conclusive  evidence  of  title  in  the  lessor  of  the 
plaintifl'  from  the  time  of  the  demise  laid  in  the  declaration, 
and  that  he  was  not  in  possession  at  the  institution  of  his 
ejectment  suit.  Beyond  the  time  laid  in  the  demise,  it 
proves  nothing,  because  beyond  that  time  the  plaintiff 
alleged  nothing." 

§  298.  Payment  of  Costs.— The  action  of  ejectment  is 
said  to  be  peculiarly  a  creation  of  the  court.  The  court 
will  so  far  control  its  creation  as  to  stay  proceedings  in  the 
second  suit,  if  the  costs  resulting  from  failure  in  a  former 
suit  remain  unpaid,"  if  it  appear  that  the  second  action  turns 
on  the  same  question  of  title  as  the  first,  though  a  different 
parcel  of  land  be  claimed  and  a  different  person  be  made 
defendant.*  This  seems  to  be  the  only  power  which  the 
courts  have  reserved  by  which,  if  need  be,  to  prevent  this, 
their  creation,  from  perpetually  harassing  the  occupants  of 
real  estate,  by  the  repeated  assertion  of  pretensions  whose 
worthless  character  has  been  judicially  ascertained. 

§299.  Ejectment,  Modified  by  Statutes.  — Wherever 
the  common  law  form  of  ejectment  is  abolished,  and  the 
action  is  commenced  by  the  parties  in  their  own  names,  the 
judgment  is  an  estoppel,  a  valid  bar  to  any  subsequent  ac- 
tion, unless  the  privilege  of  commencing  another  is  given 


1  Secrist  v.  Zimmerman,  55  Pcnn. 
S.  44G. 

2  Shumake  v.  Nelm's  Admr.,  25  Ala. 
12G;  note  270  by  C.  H.  &  E.  to  Ph. 
Ev.  ;  Buntin  v.  Duchaue,  1  Biles.  5G  ; 
Aslin  V.  Parkin,  2  Burr.  GGG  ;  Dewej' 
V.  Osboru,  4  Cow.  329;  Doe  v.  Langs, 
9  Upper  Canada  Q.  B.  G7G;  Thouii^son 
V.  Hall,  31  lb.  37G.     A  judgment  by 


default  in  ejectment  is,  in  England, 
good  evidence  of  title  for  plaintifl',  in 
an  action  for  mesne  profits;  but  is  not 
even  iirbna  facie  evidence  that  de- 
fendant was  in  possession.  (Pearse 
V.  Coaker,  4  Law.  E.  Exq.  Ca.  92.) 

3  Danvers  v.  Morgan,  17  C.  B.  530. 

*  Doe  on  Demise;  Brayne  v.  Bather, 
12  Q.  B.  941. 

325 


§§299-300 


LAW   OF   JUDGMENTS. 


[Chap.  XII- 


by  statute.'  Technically  and  substautiall}^,  under  the  form 
of  procedure  in  which  the  action  to  recover  real  estate  is 
conducted  in  the  name  of  the  real  claimant,  who  need  not 
depend  for  his  success  on  anything  but  his  tille;  we  no  longer 
have  an  action  of  ejectment.  "Wo  can  see  no  reason  why 
a  judgment  upon  a  matter  in  regard  to  realty,  once  put  in 
issue,  litigated  and  determined,  whether  it  be  title,  right  to 
present  possession,  or  something  else,  should  not  be  con- 
clusive, as  well  as  when  it  relates  to  personalty.  No  prin- 
ciple of  the  common  law  would  be  violated  by  such  a  result. 
Nor  would  it  be  contrary  to  any  principle  of  public  policy. 
The  form  of  the  complaint  in  an  action  to  recover  real  es- 
tate may  be  adapted  to  the  estate  sought  to  be  recovered, 
and  the  facts  desired  to  be  put  in  issue."-  A  judgment  in 
ejectment,  like  every  other  final  adjudication,  bars  only  the 
causes  of  action  and  matters  of  defense  put  in  issue  in  the 
former  suit,  or  which,  if  not  put  in  issue,  were  of  such  a  na- 
ture that  the  neglect  to  put  them  in  issue  was  an  irrevocable 
confession  of  their  non-existence.^  If  the  plaintiff  sue  for 
two  parcels  of  land  and  recover  but  one,  or  for  a  large  tract 
and  recover  but  a  part  thereof,  the  judgment,  though  silent 
as  to  the  part  not  recovered,  is  nevertheless  conclusive  that 
the  plaintiff  was  not  entitled  thereto.^  No  doubt  the  parties 
in  their  pleadings  may  limit  their  controversy  to  a  particu- 
lar title.'*  But  in  the  absence  of  any  limitation  made  by  the 
pleadings,  the  defendant  must,  at  his  peril,  protect  all  his 
rights  in  the  land,  or  connected  therewith.  If,  after  erect- 
ing buildings,  he  'suffer  judgment  to  be  taken  against  him 
for  the  possession  of  the  laud,  he  cannot  surrender  posses- 
sion and  afterward  maintain  an  action  against  the  plaintiff 
for  the  value  of  the  buildings.'^ 

§300.     What  Pleadings  involve  Title.  —  If  the  com- 
plaint allege  that  plaintiff  way,  at  a  specified  time,  possessed 


1  Sturdy  v.  Jackaway,  4  Wall.  174 ; 
Miles  V.  Caldwell,  2  Wall.  35  ;  Beebe 
V.  Elliott,  4  Barb.  457  ;  Sheridan  v. 
Andrews,  3  Lansing,  129 ;  Campbell 
V.  Hall,  IG  N.  Y.  575;  Castle  v.  Noyes, 
41  N.  Y.  329;  Fitch  v.  Cornell,  1  Saw. 
C.  C.  156;  Oetgen  v.  Eoss,  54  111.  79. 

326 


2  Caperton  v.  Schmidt,  26  Cal.  479. 

3  Foster  v.  Evans,  51  Mo.  39. 

4  Thompson  v.  McKay,  41  Cal.  221 ; 
Woodiu  V.  Clemens,  32  Iowa,  280. 

5  Marshall  v.  Shafter,  82  Cal.  176. 
c  Doak  V.  Wiswell,  31  Maine,  355. 


Chap.  XII.]  AVOIDING  EFFECT.  §^300-302 

of  lands,  and  that  he  claims  such  lands  in  foe  simple  abso- 
lute, and  that  being  so  possessed  thereof,  and  being  so  the 
owner  thereof,  the  defendant  entered  and  ejected  plaintilT, 
etc.,  it  tenders  an  issue  of  title.  If,  to  this  complaint,  the 
defendant  make  a  general  denial,  a  subsequent  judgment 
for  defendant  is  conclusive  upon  all  the  title  held  bj  the 
plaintiff  at  that  time.^  "It  must  bo  admitted  by  every  one, 
that  a  recovery  operates  as  an  estoppel  to  this  extent,  to 
preclude  the  losing  party  from  denying  that,  as  to  him,  the 
prevailing  party  was,  at  the  time  of  the  rendition  of  the 
judgment,  entitled  to  the  possession.  It  would  seem  neces- 
sarily to  follow,  that  in  order  to  avoid  the  estoppel,  the  los- 
ing party  must  show  other  rigid  to  possession  than  that  which 
he  had  when  the  estoppel  was  created.  He  is  bound  to 
show  such  right,  because  his  former  claim  of  right  was  de- 
termined by  the  recovery."^ 

§  301.  Issues  concluded  by  Judgment  in  Ejectment. — 
Under  the  code,  a  judgment  in  ejectment  is  conclusive  of 
but  two  points  :  the  right  of  possession  in  plaintiff  at  the 
commencement  of  the  suit,  and  the  occupation  of  the  prem- 
ises by  the  defendant  at  the  same  date.  At  common  law, 
the  judgment  was,  in  an  action  for  mesne  profits,  conclusive 
of  title  at  the  time  of  the  alleged  demise.  Under  our  prac- 
tice the  rule  is  different,  because  the  plaintiff  is  entitled  to 
recover  iipon  proof  of  right  to  the  possession  at  the  com- 
mencement of  his  suit ;  and  an  allegation,  on  his  part,  in 
relation  to  the  date  of  the  acquisition  of  his  title,  is  imma- 
terial.^ 

§  302.  Avoiding  Effect  of  Former  Judgment. — When- 
ever, in  an  action  for  possession  of  realty,  the  question  of 
title  is  put  in  issue  by  the  pleadings,  the  judgment,  prima 
facie,  constitutes  an  estoppel  to  the  assertion  of  any  title 
which  existed  in  the  losing  party  at  the  time  of  the  former 
suit.  To  avoid  this  estoppel,  he  may  show  that,  by  reason 
of  some  lease  or  license,  his  title  could  not  be  asserted  in 
the  former  suit.*     Judgment  in  ejectment  never  affects  after 


1  Marshall  v.  SLafter,  32  Cal.  17G. 

2  lb. 


3  Yount  V.  Howell,  14  CaL  465;  Sat- 
terlee  v.  Bliss,  36  Cal.  4S9. 

4  Shcrmau  i'.  Dillcy,  3Nev.  21. 

327 


§§302-303  LAW  or  judgments.  [Cliap.  XII. 

acquired  title.  Therefore  a  defeated  party  may,  in  any 
subsequent  suit,  show,  by  parol  or  otherwise,  tliat  the  right 
to  the  possession  has  come  to  him  since  the  former  suit,  i 

§  303.  Judgments  of  Foreclosuro. — The  judgment  in  a 
writ  of  entry  to  foreclose  a  mortgage  is  conclusive  on  all 
the  title  held  by  defendant  at  the  date  of  the  judgment.  ^  If 
the  defendant  in  a  foreclosure  suit  answers,  claiming  the 
whole  equity  of  redemption,  and  the  complainant  makes  no 
replication,  the  decree  will  be  conclusive  on  the  latter,  so 
that  he  can  not  afterwards  set  up  other  claims.  ^  Where  a 
bill  was  opposed  by  the  widow  of  the  deceased  mortgagor, 
on  the  ground  that  the  property  mortgaged  was  hers,  and 
the  court  found  that  the  husband  had  a  life  est  ite,  and 
directed  such  estate  to  be  sold,  it  was  held,  that  the  rights 
of  the  mortgagees  were  thereby  confined  to  the  life  estate, 
and  that  they  could  not,  in  any  subsequent  action,  show 
that  the  same  property  belonged  absolutely  to  the  husband.* 
In  an  action  for  foreclosure,  no  rights  ought  to  bo  litigated 
except  those  which  are  claimed  under  the  mortgagor.  If 
the  court  undertakes  to  determine  claims  hostile  to  the  title 
of  the  mortgagor,  its  decree  will  certainly  be  erroneous  and 
liable  to  reversal  in  an  appellate  court;  but  it  is  not  coram 
non  jadice  and  void.  On  the  contrary,  it  is  valid  until  re- 
versed, and  is  not  subject  to  any  collateral  attack.  ^  But 
the  priority  of  respective  liens,  is  a  proper  question  to  be 
determined  in  a  foreclosure  suit.  If  a  decree  disposes  of 
the  question  of  precedence  between  two  mortgages,  it  is 
final  upon  that  point,  though  the  bill  neither  asked  for  such 
a  decision  nor  for  general  relief.  The  words,  ' '  that  it  is 
ordered,  adjudged  and  decreed  that  the  defendants  and  all 
persons  claiming  under  them,  or  either  of  them,  since  the 
commencement  of  this  cause  be  forever  barred  and  fore- 
closed of  their  equity  of  redemption,  and  claim  of,  in  or  to 
the  mortgaged  premises  and  every  part  and  parcel  thereof," 
are  sufficient  to  show  the  decision  of  a  question  of  priority 
and  to  prevent  its  being  again  contested."  ^    If  specified  per- 


1  Mahoucy  v.  Van  Winkle,  33  Cal. 
4.48;  Emerson  v.  Sansome,  41  Cal.  552. 

2  Shears  u.  Dusenbury,  13  Gray,  292. 

3  To-wer  v.  White,  10  Pai.  335. 

328 


<  Manigalt  v.  Deas,  1  Bai.  Eq.  2S3. 

5  Board  of  Supervisors  f»  M.  P.  IL 
R.  Co.,  24  Wis.  121. 

6  Idem,  5J4Wis.  p.  123. 


Cliap.  XII.]       JUDGMENTS  AFFECTING  DOWER.  gg303-303a 

sons  be  made  defendants,  and  it  bo  alleged  tliat  they  claim 
some  interest  in  the  premises  "  as  subsequent  purcbasers 
or  incumbrancers,  07'  olheriuise,"  a  general  decree  will  pre- 
clude tliem  from  asserting  any  rights  acquired  from  the 
mortgagor  after  the  execution  of  the  mortgage.  But  it  will 
not  divest  any  rights  held  paramount  to  the  title  of  the 
mortgagor,  when  he  executed  the  mortgage.^  The  right  of 
the  wife  of  the  mortgagor  to  dower,  is  such  a  paramount 
right,  if  she  be  made  party,  after  becoming  a  widow,  to  a 
suit  to  foreclose  a  mortgage  executed  by  her  hutibaud  alone, 
and  no  allegation  be  made  in  the  bill  in  reference  to  her 
claim  for  dower,  the  decree  will  not  be  considered  as  affect- 
ing her  dower  estate.-  But  if  the  adverse  claim  of  a  party 
be  set  up,  and  in  fact  litigated,  the  decree  is  binding*  on 
him.  The  homestead  interest  is  necessarily  disposed  of  by 
a  decree  to  which  both  husband  and  wife  are  parties;  and 
the  latter  can  not,  therefore,  successfully  resist  an  action 
for  property  sold  under  an  order  of  sale  issued  in  a  fore- 
closure suit,  to  which  she  was  a  party,  on  the  ground  that 
the  land  sold  is  her  homestead.  ^ 

§  303a.      Judgments  Affecting    Right    of    Dower. — It 

seems  that  in  order  to  conclude  the  wife's  right  of  dower  it 
must,  in  all  cases,  be  necessarily  and  specifically  put  in 
issue,  whether  the  proceeding  be  to  foreclose  a  mortgage  to 
which  the  wife  was  not  a  party,  or  to  enforce  any  other  claim 
to  w^hich  her  right  of  dower  was  paramount.  M.  and  wife 
conveyed  their  real  property  to  his  brother.  M.'s  creditors 
subsequently  recovered  judgment  against  him  and  obtained 
the  appointment  of  a  receiver.  This  receiver  obtained  a 
judgment  against  M.  and  wife,  and  M.'s  brother  declaring  the 
conveyance  fraudulent  and  void  as  to  creditors,  and  direct- 
ing a  sale  of  the  premises,  and  that  the  parties  in  posses- 
sion should  deliver  possession  to  the  purchaser.  Prior  to 
the  sale  M.  died.  His  wdfe  brought  an  action  to  recover 
dower  in  the  premises;  and  the  judgment  against  her  in  the 
action  to  set  aside  the  deed  was  claimed  to  bar  her  from 


1  Frost  V.  Koon,  30  N.  Y.  444,  cit- 
ing Lewis  V.  Smith,  11  Barb.  15G  ; 
Bank  of  Orleans  v.  Flagg,  3  Barb.  Ch. 
318;  Elliott  v.  Page,  1  Pai.  263. 


-  Lewis  V.  Smith,  9  N.  Y.  5U2. 
•'Lee   V.   Kingsbury,  13    Tex.  68; 
Baxters.  Dear,  24 Tex.  17. 

320 


§303a  LAW  OF  JUDGMENTS.  [Chap.    XII. 

asserting  any  claim  to  dower,  although  she  had  not  presented 
any  such  claim  in  her  answer,  nor  did  the  judgment  purport 
to  dispose  of  any  such  claim.  The  Court  of  Appeals,  in 
disposing  of  this  branch  of  the  case,  said:  "  She  is  bound 
by  that  judgment,  whatever  may  be  its  legitimate  effect. 
The  judgment  is  final  and  conclusive  upon  her,  as  to  all 
matters  put  in  issue  and  litigated  in  the  action.  But,  as 
stated  above,  the  matter  of  her  inchoate  right  of  dower  was 
not  put  in  issue  and  litigated  therein.  *  *  ^  The  plaintiff 
in  this  action  might  have  raised  in  that  action  the  question 
that  she  had  a  right  of  dower,  as  yet  inchoate  but  which 
might  become  complete;  and  might  have  asked  that  if  it 
should  be  found  to  exist,  the  judgment  should  make  pro- 
vision therefor.  But  was  she  bound  to  do  so  ?  This  would 
not  have  been  matter  in  direct  opposition  to  the  action  in 
defense  to  the  claim  made  by  the  plaintiffs  therein;  it  would 
have  been  a  quasi  admission  of  the  cause  of  action  set  up, 
and  a  seeking  for  relief  in  the  judgment  which  must  follow. 
And  when  the  authorities  say  that  a  judgment  is  final  and 
conclusive  upon  the  parties  to  it,  as  to  all  matters  which 
might  have  been  litigated  and  decided  in  the  action,  the  ex- 
pression must  be  limited  as  applicable  to  such  matters  only 
as  might  have  been  used  as  a  defense  in  that  action  as 
against  an  adverse  claim  therein;  and  such  matters,  as  ,if  now 
considered,  would  involve  an  inquiry  into  the  merits  of  the 
former  judgment.  The  existence  of  an  inchoate  right  of 
dower  in  the  plaintiff  would  not  have  been  a  defense  to  the 
action  of  the  receiver  for  a  sale  of  the  premises  and  a  satis- 
faction from  the  avails  of  the  sale  of  the  judgment  debt  which 
he  represented.  It  could  not,  if  pleaded  and  shown,  have 
prevented  a  judgment  substantially  that  which  was  rendered. 
The  most  which  could  have  been  effected  would  have  been 
to  have  secured  in  the  judgment  an  auxilliary  provision, 
recognizing  and  protecting  the  contingent  right.  And 
again :  it  was  a  right  pre-existeut  the  claims  and  defenses 
there  litigated,  and  paramount  to  any  right  of  the  plaintiff 
in  that  action  there  sought  to  be  enforced.  '^'  *  *  We  are 
of  the  opinion  that  the  plaintiff  is  not  estopped  by  the  record 
in  the  action  brought  by  the  receiver."  ^  But  when  an  action 

1  Mallouey  i\  Horaii,  49  N.  Y,  115,  Grover,  J.,  disseutiug. 

330 


Chap.  XII.]  JUDGMENTS  OF  PAKTITIOX.  gg303a-304 

is  brought  for  an  assignment  of  dower,  or  the  claim  to  dower 
is  otherwise  brought  in  issue  and  determined,  the  judgment 
is  conckisive.^ 

§  304:.     Judgments  of  Partition. — We  find  it  declared  in 
one  case  that  "a  writ  of  partition,  or  a  petition  for  parti- 
tion,  which  -is  but  a  substitute  for  the  former,  is  a  mere 
possessory  action,"  and  that  it,  at  most,  can  bar  nothing  but 
possessory  actions.'     Few,  if  any,  authorities  sustain  this 
view.     On  the  contrary,  there  can  be  no  doubt  that  a  judo-- 
ment  in  a  proceeding  for  the  partition  of  lands,  is  as  con- 
clusive upon  the  matter  put  in  issue  and  tried,  as  a  judgment 
in  any  other  proceeding,  and  may  be  set  up  as  a  bar  to  a 
writ  of  entry  involving  the  same  questions  of  title.  ^     All 
questions  of  title  and  of  possession  may  be  finally  deter- 
mined in  a  suit  for  partition.^     A  judgment  in  such  a  suit 
establishes  the  title  to  the  land  partitioned,  and  is  conclu- 
sive upon  any  adverse  claim  of  title,  or  of  possession,  exist- 
ing at  the  date  of  its  rendition.     The  law  requires  the  court 
to  ascertain  and  determine  the  rights  of  the  parties,  and 
makes  it  the  duty  of  the  parties  to  disclose  their  adverse 
claims.     The  decree  necessarily  afiirms  tliAt  the  parties  to 
it  are  tenants  in  common,  joint  tenants  or  coparceners.  ^ 
Such  decree  is  conclusive  that,  at  its  rendition,  the  land  set 
ojff  to  one  of  the  parties,  with  a  spring  thereon,  was  held  in 
common  by  the  parties  prior  to  the  judgment.''    If  a  widow 
be  made  a  party  to  proceedings  in  partition  imder  an  allega- 
tion that  she  is  entitled  to  dower,  the  decree  is  conclusive 
on  her  homestead  right. ''     A  decree  for  partition  does  not 
create  any  new  title. '^     The  only  object  and  effect  of  the 
action  is  "to  sever  the  unity  of  possession,"  and  to  convert 
"that  which  was  before  a  joint  possession  into  a  several 
one."»     It  does  not  prejudice  the  claim  of  one  of  the  parties 
to  recover  a  sum  due  from  another  for  purchase  money;  be- 

6  Edson  V.  Munsell,  12  Allen,  600. 

7  "Wright  V.  Dunning,  46  III.  271. 

8  McClure  v.  McClure,  1-4  Penn.  S. 
131;  Tabler  v.  Wiseman,  2  Ohio  S. 
211;  McBuin  v.  McBain,  15  Ohio  S. 
337. 

3  Wade  V.  Deray,  April  Term,  1872, 
of  Cal. 


1  Ervin  v.  Bradj',  48  Mo.  560. 

2  Mallett  V.  Foxcroft,  1  Stoiy,  474. 

3  Whittemore  v.  Shaw,  8  N.  H.  393; 
Doolittlo  V.  Don  Mans,  34  111.  517; 
Pentz  c.  Kuester,  41  Mo.  450. 

*  Godfrey  v.  Godfrey,  17  Ind.  6. 
5  Forder  v.  Davis,  33  Mo.  107;  Clapp 
V.  Bromaghan,  0  Con.  509, 


331 


gg 304-307  LAW  OF  JUDGMENTS.  [Chap.  XII. 

cause  the  question  of  indebtedness  from  one  of  the  tenants 
in  common  to  the  other  for  his  share  of  the  real  estate,  is 
not  made  an  issue  in  the  proceeding.  ^ 

§  305.  Judgment  for  One  not  in  Possession. — Though 
the  statutes  generally  direct  that  a  partition  can  be  sought 
only  by  some  one  in  possession,  yet  the  fact  of  possession 
is  not  a  jurisdictional  fact,  in  the  absence  of  which  the  action 
of  the  court  is  void.  If  all  the  parties  in  interest  are  brought 
before  the  court,  its  decree  will  be  binding,  until  vacated 
or  reversed,  though  the  applicant  was  not  one  of  the  parties 
authorized  by  law  to  ask  for  a  partition.  ~  A  tenant  in  com- 
mon of  a  vested  remainder  may,  while  the  tenant  for  life  is 
in  possession,  maintain  an  action  for  partition.^ 

g  306.  Persons  not  in  Esse. — In  proceedings  for  parti- 
tion, as  well  as  in  other  actions  aflfecting  realty,  it  is  suffi- 
cient to  bring  into  court  the  person  entitled  to  the  first  estate 
of  inheritance  with  those  claiming  prior  interests,  omitting 
all  claiming  or  who  may  claim  in  reversion  or  remainder 
after  the  vested  inheritance.  The  decree  will  therefore  pass 
a  title  free  from  any  claims  which  might  otherwise  subse- 
quently vest  in  persons  not  in  esse  at  the  time  of  its  rendi- 
tion. *  An  English  case  recognizes  an  exception  to  this  prin- 
ciple of  virtual  representation,  by  denying  its  applicability 
in  cases  where  the  person  seized  in  fee  is  liable  to  have  his 
seizen  defeated  by  a  conditional  limitation  or  an  executory 
devise,  because,  in  that  event,  the  estate  is  insufficiently 
represented  by  the  person  holding  the  first  vested  estate  of 
inheritance.^  This  exception  is  repudiated  so  far  as  it 
seems  to  be  noticed  in  the  United  States.  "^ 

§  307.  Unknown  OAvner. — Under  statutes  providing  that 
proceedings  in  partition  may  be  prosecuted  against  unknown 
owners,  a  decree,  regularly  obtained,  is  conclusive,  in  the 
absence  of  fraud  or  collusion,  of  the  claims  of  a  ^jarly  in 


1  McClure  v.  McClure,  14  Penn.  S. 
134. 

2  Blakeley  r.  Calder,  15  N.  Y.  617. 

3  Mead  v.  Mitchell,  17  N.  Y.  210; 
Clemens  v.  Clemens,  37  N.  Y.  59. 

i  Wills  V.  Slade,  G  Ves.  498;  Gaskell 


V.  Gaskell,  6  Sim.  643;  Nodine  v. 
Greenfield,  7  Pai.654;  Cheeseman  v. 
Thornc,  1  Ed.  Ch.  629;  see  sec.  172. 

i  Goodess  V.  Williams,  2  Y.  &  C. 
595. 

6  Mead  v.  Mitchell,  17  N.  Y.  210. 


Chap.  XII.]  ACTION  TO  QUIET  TITLE.  §^07-303 

possession  claiming  in  scvercdhj,  who  was  only  a  party  to  the 
proceeding  under  the  general  designation  of  unknown  own- 
ers. By  failing  to  answer,  he  admits  that  the  land  is  held 
in  common,  and  that  the  petitioners  are  entitled  to  have  it 
partitioned.  1 

§  308.  Conckrsive  without  Deed  of  Partition.— A  judg- 
ment in  partition,  under  the  statute,  is  final  between  the 
parties,  and  is  conclusive  evidence  of  title  without  the  exe- 
cution of  any  deeds  either  by  the  parties  or  by  commis- 
sioners, ~  and  without  the  making  of  any  partition,  because 
it  ascertains  all  the  rights  involved,  and  leaves  nothing  to 
bo  done  but  to  carry  it  into  effect.  ^ 

§  309.  Action  to  Quiet  Title. — If  the  defendant  recover 
judgment  on  the  merits,  in  a  proceeding  to  quiet  title  under 
the  statute  authorizing  suits  to  determine  conflicting  claims 
to  real  estate,  the  fact  that  he  has  a  title  is  as  conclusively 
established  as  a  judgment  in  favor  of  the  plaintiff  would 
have  established  that  defendant  had  no  title  J  An  action  was 
brought  to  quiet  title  based  upon  two  inconsistent  grounds. 
The  court  ordered  plaintiff"  to  elect  upon  which  of  these 
grounds  he  Avould  proceed.  He  made  such  election,  prose- 
cuted his  action  to  judgment,  and  was  defeated.  He  next 
commenced  another  action  based  upon  the  ground  which 
he  had  abandoned  under  the  order  of  the  court  in  the  for- 
mer litigation.  The  former  judgment  was  relied  upon  as  a 
bar,  and  was  so  considered  by  the  judge,  because,  under 
the  statute  authorizing  a  suit  to  ascertain  and  quiet  the  title 
of  the  parties,  "the  plaintiff  cannot,  at  his  option,  split  it 
up  into  many  suits,  with  which  to  harass  and  weary  the  de- 
fendant. By  the  final  decree  in  such  a  suit,  the  title  to  the 
premises,  as  between  the  parties,  is  determined,  and  all 
questions  or  matters  affecting  such  title  are  concluded  there- 
by.    If  either  party  omits  to  set  forth  and  prove  all  the 

Cook  V.  Allen,  2  Mass.  461;  Nash]  ■'  Wright  v.  Marsh,  2  G.  Greene,  94; 
I'.  Church,  10  Wis.  303;  Kane  u.  Eock  Barney  v.  Chittenden,  2  G.  Greene, 
Eiver  Co.,  15  Wis.  179;  citing  KesterilGo. 


V.  Stark,  19  111.  32S;  FoxcrafL  y. Barnes, 
':9  Mai.  128;  Kogers  v.  Tucker,  7  Ohio, 
S.  417;  Pfeltz  r.  Pfeltz,  1  M'll.  Ch. 
455;  Reese  r.  Holmes,  5  Eich.  Eq.  40. 


3  AUie  V.  Schmitz,  17  Wis.  169. 
*  Parrish  v.  Feitis,  2  Black.  606. 


333 


§g309-310  LAW  OF  JUDGMENTS.  [Chap.  XII. 

grounds  of  his  right,  or  his  adversary's  want  of  it,  lie  can- 
not correct  his  error  by  bringing  another  suit  upon  the  por- 
tion or  fragment  of  the  case  omitted."^ 


JUDGMENTS  IN  ACTIONS  OF  TRESPASS  ON  REAL  ESTATE. 

§310.  First — In  Like  Actions. — It  seems  to  be  gener- 
ally, if  not  universally,  conceded,  that  Avhero  one  has  main- 
tained trespass  quare  claasum  /regit  against  another,  and 
afterward  sues  for  a  subsequent  trespass,  the  former  recov- 
ery is  conclusive  in  reference  to  the  title  set  up  to  the  premi- 
ses at  the  time  of  such  recovery,  and  the  defendant  can  offer 
in  evidence  no  title  not  acquired  by  him  since  the  previous 
suit.^  "A  recovery  in  any  one  suit  upon  issue  joined  on 
matter  of  title  is  clearly  conclusive  upon  the  subject  matter 
of  such  title ;  and  a  finding  upon  title  in  trespass  not  only 
operates  as  a  bar  to  the  future  recovery  of  damages  for  the 
trespass  founded  on  the  same  injury,  but  also  operates  by 
way  of  estoppel  to  another  action  for  an  injury  to  the  same 
subject  right  of  possession.  It  is  not  the  recovery,  but  the 
matter  alleged  by  the  party,  and  upon  which  the  recovery 
proceeds,  that  creates  the  estoppel.  The  estoppel  in  tres- 
pass precludes  parties  and  privies  from  contending  to  the 
contrary  of  that  point  of  fact  which,  having  once  been  put 
in  issue,  has  been  solemnly  found."*  A  judgment  in  tres- 
pass, grounded  upon  the  theory  that  the  land  described  in 
the  pleadings  is  within  the  boundaries  of  one  of  the  parties, 
is  conclusive  upon  that  question  in  any  other  action  of  tres- 
pass between  the  same  persons.^  Some  cases,  however, 
proceed  upon  the  theory  that,  in  order  to  make  a  judgment 
in  trespass  conclusive  of  title  even  in  another  action  of  tres- 
pass, the  title  must  have  been  placed  in  issue  by  plea  of 
soil  and  freehold,  or  by  some  other  equivalent  plea.'"'  In 
Massachusetts,  an  action  on  the  case  for  the  interruption 
of  lights,  or  other  easements,  tried  uj)on  the  general  issue, 
docs  not  affect  the  title.     But  if  the  defendant  plead  title  in 


1  Starr  v.  Stark,  1  Saw,  C.  C.  275, 
by  Judge  Dcady. 

'  Bert  i\  Stermberg,  4  Cow.  559. 
3  Outram  v.  Morewood,  3  East.  316. 

334      . 


4  Warwick  v.  Underwood,  3  Head. 
238. 

•"'  Potter  V.  Baker,  19  N.  H.  1G6; 
Stevens  v.  Hughes,  31  Penn.  S.  383. 


Cliap.  XII.]  IN  ACTIONS  IN  EJECTMENT.  g ^310-311 

bar,  and  issue  be  taken  on  it,  the  verdict  will  be  conclusive 
in  subsequent  controversies/  In  the  same  State,  a  judg- 
ment in  an  action  for  the  obstruction  of  a  private  way,  on 
the  general  issue,  is  admissible  but  not  conclusive  evidence 
in  a  subsequent  suit  for  the  continuance  of  the  same  ob- 
struction." In  an  action  for  overflowing  lands,  occasioned 
by  a  mill-dam,  a  former  recovery  between  the  same  parties 
is  conclusive  as  to  the  title  of  the  land,  so  far  as  it  was  in- 
volved in  the  former  suit/^  When  it  has  been  adjudged  that 
defendant  has  no  right  to  flow  plaintiff's  land  without  pay- 
ing damages  therefor,  he  can  not,  in  a  subsequent  suit  to 
increase  the  annual  rent,  show  a  right  by  prescription,  or  by 
grant  prior  to  the  former  judgment-^  Judgment  for  plaintiff 
in  an  action  of  trespass,  in  which  the  defendant  denied  the 
trespass,  and  set  up  that  he  had  a  right  of  way  over  the 
land,  is,  in  Massachusetts,  not  conclusive  that  defendant 
had  no  right  of  way,  but  only  that  he  had  trespassed  on 
some  portion  of  plaintiff's  land.^ 

§  311.  Second — In  Actions  in  Ejectment. — In  Pennsyl- 
vania, a  recovery  in  an  action  of  trespass  quare  clausum  f regit, 
if  the  only  plea  be  liheriun  tenemenium,  is  not  conclusive  of 
the  title  in  a  subsequent  action  of  ejectment  for  the  same 
land.^'  But  in  South  Carolina,  an  opposite  view  is  main- 
tained. The  defendant  who,  making  such  a  plea  and  set- 
ting forth  his  claim  by  metes  and  bounds,  has  a  verdict  and 
judgment  in  his  favor,  may  use  this  judgment  as  conclusive 
evidence  of  title  in  an  action  brought  by  him  against  the 
former  plaintiff  for  the  land  included  in  the  plea,  for  the 
judgment  is  equivalent  to  a  finding  that  the  title  to  the 
whole  land  included  in  the  j)lea  is  the  property  of  the  de- 
fendant." In  New  York,  a  recovery  in  trespass  is  as  con- 
clusive as  a  recovery  in  any  other  form  of  action.  The  rea- 
soning used  in  support  of  this  liberal  rule  is,  that  the 
matter  of  estoppel  depends  on  the  identity  of  the  cause  of 


1  Standish  v.  Parker,  2  Pick.  20. 

2  Parker  r.  Standish,  3  Pick.  288  ; 
Kent  r.  Gerrisb,  18  Pick.  564. 


5  Howard  v.  Albro,  100  Mass.  236. 
cSabins  r.  McGhee,  3G  Penn.  S.  453. 
"  Parker  u.  Leggett,   13  Pich.    171. 


■'  Jones  11.  Weathersbee,  4  Strob.  50;  See  also  Chambers  v.  Dolhir,  29  Up- 


Kilhoffer  v.  Herr,  17  S.  &  R.  319. 
4  Adams  v.  Pearson,  7  Pick.  344. 


per  Canada,  Q.  B.  COG;  Whittaker  r. 
Jackson,  2  Hurls.  &  C.  OZG. 

335 


g^311-312  LAW  OF  JUDGMENTS.  [Chap.  XII. 

action,  and  not  on  the  identity  of  the  form;  that  the  causes 
of  action  are  the  same  whenever  thej  can  be  supported  by 
the  same  evidence,  though  they  may  bo  founded  on  differ- 
ent writs.'  But  in  Massachusetts,  it  is  considered  that  the 
issues  in  an  action  of  trespass  are  necessarily  such  that, 
under  no  circumstances,  can  the  judgment  be  conclusive  of 
the  mere  title  of  property."  In  Indiana,  a  recovery  in  an 
action  of  trespass  upon  title  to  land  being  put  in  issue,  no 
judgment  being  rendered  on  such  title  further  than  it  might 
be  supposed  to  enter  into  the  determination  of  the  action, 
and  no  decision  upon  the  title  being  essential  to  the  judg- 
ment, is  no  bar  to  an  action  of  ejectment.  ^  *'  So  where  the 
declaration,  in  an  action  of  trespass,  or  trespass  on  the  case, 
for  an  injury  to  land,  alleges  that  the  plaintiff  was  well 
seized  and  possessed  of  the  land  as  a  good  indefeasible 
estate  in  fee  simple,  it  is  sufficient  on  the  trial  for  the 
plaintiff  to  show  a  lawful  possession  at  the  time  when  the 
injury  w^as  committed.  And  a  judgment  for  the  plaintiff  in 
such  a  case,  upon  a  general  issue,  is  conclusive  evidence 
between  the  parties  and  their  privies  only  of  such  title  as 
the  plaintiff  was  bound  to  prove. "*  The  fact  that  a  judg- 
ment is  entered  for  nominal  damages,  does  not  depreciate 
its  effect  as  res  judicata.^  A  judgment  in  an  action  of  tres- 
pass to  try  titles  is,  in  Texas,  conclusive  upon  the  title  held 
by  the  losing  party  in  its  rendition." 

§  312.  Suits  for  Breach  of  Warranty. — The  successful 
prosecution  of  an  action  for  a  breach  of  warranty  of  a 
contract  necessarily  affirms,  for  all  future  actions,  the  mak- 
ing of  the  contract. ''  A  judgment  for  the  defendant  in  an 
action  of  tort  for  a  false  representation  of  the  soundness  of 
a  horse,  is  a  bar  to  a  subsequent  action  of  contract  on  the 
defendant's  promise,  at  the  time  of  the  exchange,  that  the 
horse  was  sound.**  P.  brought  an  action  in  chancery  to  set 
a,side   a  sale  and  to  enjoin  the  collection  of  the  purchase 


1  Rice  V.   Kiug,   7  Johns.  20;  Mc- 
Knigbt  V.  Duulop,  4  Barb.  3G. 

2  Arnold    V.    Arnold,     17    Pick.   4; 
Morse  v.  Marshall,  97  Mass.  519. 

3  Hargus  v.  Goodman,  12  Ind.  629. 

336 


4  Hilliard  on  Torts,  vol.  1,  p.  498; 
Parker  t\  Hotchkiss,  25  Corm.  321. 

5  easier  v.  Shipman,  35  N.  Y.  533. 

6  risk  V.  Miller,  20  Tex.  579. 

1  Barker  v.  Cleveland,  19  Mich.  230. 
8  Norton  v.  Doherty,  3  Gray,  372. 


Chap.  XII.]  DivoECE.  §§312-313 

money,  on  tlio  gronnd  of  fraud  practiced  by  the  vendor  in 
making  the  sale.     Failing  in  chancery,  P,  commenced  suit 
at  law  to  recover  damages  for  breach  of  warranty.     It  was 
held  that  tlie  issues  in  the  two  actions  were  different.    That 
while,  as  affirmed  by  the  judgment  in  chancery,  the  vendor 
may  not  have  been  guilty  of  fraud,  it   nowise   necessarily 
followed  that  he  did  not  make  a  contract  of  warranty,  nor 
that  such  contract,  if  made,  was  not  broken.^     In  an  action 
for  breach  of  warranty  of  the  character,  quality  or  quantity 
of  goods  sold,  if  it  be  conceded  that  the  contract  was  made 
by  the   parties   and   has   been  fulfilled  by  the  vendee  but 
broken  by  the  vendor,  the  issue  presented  to  the  court  or 
jury  is,  What  are  the  damages  occasioned  by  the  breach  of 
the  vendor's  warranty?     These  damages  must  be  estimated 
the  same,  whether  the  purchase  money  has  been  paid  or 
not.     After  a  recovery  by  the  vendee,  the  vendor  may  main- 
tain an  action  for  the  whole  of  the  purchase  money,  if  it 
has  not  been  paid.     The   effect  of  the  judgment  for   the 
vendee  iu  his  action  for  breach  of  warranty,  is  to  establish 
the  making  of  the  contract,  and  that  the  vendor  has  suffered 
in  a  prior  suit  all  damages  sustained  for  its  non-perform- 
ance.'    If  a  party  proceed  upon  the  theory  that  a  contract 
has  been  totally  rescinded  by  the  failure  of  a  vendor  to  per- 
form his  part  thereof,  the  judgment  is  conclusive  on  the 
vendee  of  all  damages  suffered  by  him,  including  an  amount 
advanced  on  the   contract,  and  equally  conclusive  against 
the  vendor  of  the  abrogation  of  the    contract,  and  of  his 
right  to  recover  any  sum  stipulated  for  its  performance. ^ 
If  a  warrantee  recover  and  have   satisfaction  of   his  Avar- 
rantor  on  his  covenant  to  warrant  the  title  to  real  estate,  he 
cannot  afterwards  regain  possession  of  the  land  from  the 
warrantor  on  that  deed.     He  is  estopped  by  the  judgment 
procured  in  his  own  behalf,  and  which  proceeds  upon  the 
theory  that  the  deed  did  not  convey  the  title.* 

§  313.     Divorce. — One    who   brings  a  bill   for   divorce, 
which,  upon  a  trial  on  the  merits,  he  fails  to  sustain,  cannot 


1  Pleasants  v.  Clements,  2  Leigh, 
474. 

-  Barker  i'.  Cleveland,  19  Mich.  230. 
Perrine  v.  Serrell,  30  N.  J.  458. 


3  Barker  v.  Cleveland,  19  Mich. 230; 
Freeman  r.  Cliitc,  3  Barb.  424. 

^  Porter  v.  Hill,  9  Mass.  34  ;  Wins- 
low  V,  Grindal,  2  Greenl.  G4. 


(22)  3G7 


§313  LAW   OF  JUDGMENTS.  [Chap.  XII. 

afterward  proceed  for  tlie  same  ofieuse/  though  the  decree, 
simply  dismisses  his  bill.-     "A  libel  for  divorce  from  the 
bonds  of  matrimony,  and  a  libel  for  divorce  from  bed  and 
board,  are  proceedings  having  a  direct  and  intimate  relation 
to  each  other.     They  seek  for  different  degrees  of  change 
in  the  married  relation,  and  concern  the  same  subject  mat- 
ter."'    In  this  case,  "the  libcllant  in  the  first  suit  asked  a 
decision  of  the  court  upon  the  question  whether  she  had 
been  so  cruelly  treated  as  to  justify  a  judicial  sentence  of 
separation  from  her  husband;  and  the  judgment  given  was 
that  she  was  not.     This  judgment  was  plainly  a  bar  to  any 
new  application  from  bed  and  board,  upon  the  same  ground 
up  to  that  time,  whether  upon  the   same  or  different  evi- 
dence;" and  it  is  also  a  bar  to  the  more  complete  remedy 
of  divorce  from  the  bonds  of  matrimony.     "A  sentence  of 
divorce  necessarily  affirms  the  marriage;  and  no  proceeding 
can  afterward  be  had  to  declare  the  marriage  A'oid  ah  in'dlo."^ 
A  decree  of  divorce,  so  far  as  it  affects  the  status  of  the 
parties,  is  considered  as  a  judgment  in  rem,  and  if  free  from 
fraud  and  collusion,  is  binding  on  the  whole  woidd.^     But 
except  in  relation  to  the  status  of  the  parties,  it  is  subject 
to  the  usual  rule  that  estoppels  must  be  mutual;  and  does 
not  conclude  any  third  person  in  reference  to  the  facts 
which  it  necessarily  affirms  or  denies.     A  decree  dismissing 
ar  bill  for  divorce,  sought  on  the  ground  of  alleged  adultery 
of  a  wife,  is  not  evidence  against  the  husband  that  the  wife 
did  not  commit  adultery  prior  to  the  petition  for  divorce  or 
during  its  pendancy,  in  an  action  against  him  for  necessa- 
ries furnished  to  her  during  their  separation.     So  far  as  the 
parties  to  this  action  are  concerned,  the  matter  is  not  res 
judicata.     The  judgment  in  the  divorce  suit  not  being  bind- 
ing on  the  plaintiff  in  this  suit,  he  cannot  avail  himself  of 
it  for  the  purpose  of  binding  the  defendant.*^ 


^  Bishop  on  Marriage  and  Divorce, 
Vol.  2,  ^  7GG. 

-  Thurston  v.  Thurston,  99  Mass. 
39. 

3  Fera  v.  Fera,  98  Mass.  155. 

*  Bishop  on  Marriage  and  Divorce, 
Vol.  2,  ^  7G5. 

338 


5  Bishop  on  Marriage  and  Divorce, 
Vol.2,  ^S^W55,  756. 

6  Gill  V.  Bead,  5  R.  I.  343.  In 
Maine  a  divorce  procured  by  one  of 
the  sjiouses,  is  no  bar  to  an  action  for 
divorce  subsequently  brought  by  the 
other.    Each  may   obtain  a  divorce 


Chap.  XII.] 


BErLEvm. 


gg314-316 


§  314.  Alimony. — Tlio  question  of  a  proper  allowance 
to  the  wife  is  one  of  the  issues  which  should  be  litigated  in 
the  action  of  divorce.  The  decree  is  therefore  conclusive 
on  this  subject,  and  the  wife  cannot  afterwards  maintain  a 
suit  to  recover  additional  alimony.'  In  England  the  rule  is 
otherwise;  and  the  courts  there  can  allow  alimony  on  a  pe- 
tition filed  after  the  decree  of  divorce.^ 

§  315.  Partnership. — If  a  jilaintiff  obtain  judgment 
against  two  as  copartners,  this  is  conclusive  in  a  second  ac- 
tion between  the  same  parties  of  the  fact  of  the  partnership 
of  the  defendants.^  And  where  defendants,  being  sued, 
pleaded  in  abatement  the  non-joinder  of  others  whom  they 
claimed  to  be  their  copartners,  and  succeeded  in  maintain- 
ing their  plea,  the  record  in  this  suit  is  conclusive  in  a  sub- 
sequent action  against  those  who  interposed  the  plea  in 
abatement,  that  the  several  persons  were  partners,  as  al- 
leged in  the  plea.* 

g  31G.  Replevin. — In  Consequence  of  the  rule,  that  the 
conclusiveness  of  an  adjudication  is  not  affected  by  a  change 
in  the  form  of  the  action,  one  who  has  failed  in  replevin 
can  not  subsequently  maintain  an  action  of  trespass  for  the 
taking  of  the  same  goods. '^  A  judgment  in  replevin  desig- 
nating the  rights  of  the  parties,  is  as  conclusive  on  an  inter- 
vener as  it  IS  on  the  plaintiff  or  on  the  defendant.*'  A  re- 
covery in  replevin  is  equally  conclusive  on  the  defendant, 
whether  Jie  took  issue  on  the  plaintiff's  allegation  of  owner- 
ship or  confined  himself  to  a  denial  of  the  taking  and  de- 
tention. '^  A  determination  of  the  rights  of  property  in  a 
replevin  suit  is  conclusive  iu  an  action  on  the  replevin 
bond.  ^  Judgment  in  replevin  on  plea  of  }ion  detlnet,  ac- 
companied by  a  notice  that  the  goods  were  the  property  of 
the  defendant,  rendered  on  a  special  verdict,  finding  that 
defendant  unlawfully  detained  the  goods,  but  silent  on  the 


from  the  other;  or,  in  other  wortls, 
there  may  bo  two  decrees  dissolving 
the  same  marriage.  Stilphen  v.  Hou- 
dette,  60 .Me.  447;  also,  58 Me.  513. 

1  Fischli  V.  Fishli,  1.  Blackf.  3G0. 

2  CoveU  V.  Covell,  L.  R.  2  P.  &.D. 
1411. 


^  Diittou  !.'.  Woodman,  9  Cush.  255. 
*  Witner  1-.  Schlatter,  15  S.  &  R.  150. 
">  Enwald  v.  Waterhout,  37  Mo.  G02. 
c  Witter  v.  Fisher,  27  Iowa,  9. 

7  Wilson  V.  McClenning,  23  111.  409. 

8  Denny  v.  Eeynolds,  24  Ind.  248. 

339 


g ^316-318  LAW  or  judgments.  [Cliap.  XII. 

issue  of  property,  is  not  conclusive  on  the  title  where  it. 
does  not  appear  from  the  record  that  the  title  was  passed 
upon,  because  no  decision  in  relation  to  title  was  essential 
to  the  judgment,  a  mere  right  of  plaintiff  to  a  lien  being 
sufficient  to  support  his  action.  ^  Whenever  the  defendant 
is,  under  the  pleadifigs,  entitled  to  try  the  title  and  to  have 
the  property  returned  to  him,  in  case  he  succeeds,  he  is 
bound  to  present  his  evidence  of  title,  and  can  not  seek  his 
remedy  by  a  cross  suit."  A  judgment  for  the  defendant, 
when  he  merely  traverses  plaintiff's  complaint  without  ask- 
for  a  return  of  the  property,  establishes  either  that  plaintiff 
has  no  title  or  that  the  defendant  does  not  unlawfull^y  detain. 
In  order  to  give  proper  effect  to  such  a  judgment,  it  must 
be  shown  aliunde  on  what  grounds  the  court  or  jury  pro- 
ceeded in  the  former  action.^ 

§  817.  Trespass. — Judgment  for  the  defendant  in  an  ac- 
tion for  taking  goods,  is  a  bar  to  a  subsequent  action  of  as- 
sumpsit for  the  value  of  the  same  goods.*  The  plea  of  not 
guilty,  in  an  action  of  trespass  de  bonis  asportatis,  puts  noth- 
ing in  issue  but  the  Avrongful  taking.  The  simple  verdict 
of  not  guilty  applies  to  the  wrongful  taking,  and  leaves  the 
question  of  title  unsettled.  ^  A  recovery  by  the  defendant 
in  an  action  on  the  case  for  ciitting  and  carrying  away  wheat, 
bars  an  action  of  trespass  quare  clausum  f regit  for  the  same 
cause.  ^ 

§  318.  Criminal  Cases.— The  principles  applicable  to 
judgments  in  criminal  cases  are,  in  general,  identical,  so  far 
as  the  question  of  estoppel  is  involved,  with  the  j)rinciples 
recognized  in  civil  cases.  An  acquittal  or  a  conviction,  un- 
der an  indictment  for  any  offense,  is  a  bar  to  any  subse- 
quent indictment  substantially  like  the  former. "'  But  in 
criminal  as  in  civil  actions,  it  is  essential  that  the  judgment 
be  on  the  merits  and  not  tainted  with  fraud.  Thus  going 
into  a  favorable  court,  and  submitting  to  a  conviction,  in 
order  to  escape  a  severe  penalty,  is  no  bar  to  a  bona  fide 


1  Board  of  S.  v.  M.  P.  E.  E.  Co., 
24  "Wis.  125. 

2  McKnight  v.  Dunlop,  4  Barb.  36. 

3  Angel  V.  Hollister,  38  N.  Y.  378. 

340 


*  nice  V.  King,  7  Johns.  20. 

5  Harris  r.  Minor,  28  111.  139. 

6  Johnson  v.  Smith,  8  Johns.  383. 
\  Lesshe  v.  State,  18  Ohio,  S.  390. 


Chap.  XIT.]       JLTGMENTS  IN  CKIillNAL  CASES.  gg318-319 

prosecution.  1     A  nolle  irrosequi  in  a  criminal  case  has  no 
greater  effect  than  a  nonsuit  in  a  civil  case.     But  the  for- 
mer can  only  be  entered  before  the  trial.     After  the  trial 
has  commenced  the  relation  of  the  defendant  to  the  cause 
is  materially  changed.     The  jury  having  been  called,  he  has 
a  right  to  their  verdict,  unless  some  inevitable  casualty  in- 
terposing prevents  its  rendition.     If,  in  the  absence  of  any 
such  casualty,  a  nolle  prosequi  be  entered  without  the  con- 
sent of  the  defendant,  it  is  equivalent  to  an  acquittal.-   The 
acquittal  of  the  accused  will  be  no   bar  to  a  subsequent 
j)rosecution,  if  the  former  indictment  was  such  that  no  con- 
viction could  have  been  legally  had  upon  the  evidence  nec- 
essary to  support  the  second  indictment.^     Though  no  nolle 
lyrosequl  can  be  entered  without  consent  of  the  defendant, 
after  the  submission  of  any  evidence  to  the  jury,  where  the 
trial  is  regularly  brought  on,  yet  if  the  arraignment  of  the 
defendant  is  omitted,  and  he  is  tried  without  any  plea,  he  is 
not  put  in  jeopardy,  because  there  is  no  issue  to  which  the 
evidence  can  be  applied,  and  a  nolle  prosequi  may  therefore 
be  entered  without  his  consent.^    Whoever,  being  convict- 
ed on  a  valid  indictment,  avails  himself  of  any  remedy  to 
relieve  himself  of  the  conviction  on  the  ground  that  it  is 
irregular  or  erroneous,  does  so  on  the  implied  condition  of 
submitting  himself  to  a  new  trial,  whether  he  applies  for  it 
in  the  court  below  or  not.'"*    Whenever  a  charge  includes  a 
minor  charge,  an  acquittal  of  the  former  includes  the  latter. 
Thus  a  verdict  of  not  guilty  on  an  indictment  for  murder 
bars  a  prosecution  for  manslaughter.  ^ 

§  319.  Judgments  in  Criminal  Cases  as  Evidence  in 
Civil. — The  record  of  a  conviction  or  of  an  acquittal  is  not, 
according  to  a  decided  preponderance  of  authority,  conclu- 
sive of  the  facts  on  which  it  is  based,  in  any  civil  action.  "^ 
Thus,  an  action  of  trover  for  money  alleged  to  be  stolen,  is 
not  prejudiced  by  the  acquittal  of  the  defendant  on  a  pros- 


1  Note  292,  Ph.  Ev. ;  State  v.  Little, 
1  N.  H.  257;  Common-wealth  v.  Jack- 
son, 2  Va,  Cas.  501. 

2  U.  S.  V.  Shoemaker,  2  McLean, 
114. 

s  Ph.  Ev.  56. 


*  Bryans  v.  State,  34  Geo.  323. 
6  Stewart  v.  State,  13  Ark.  736. 
c  Ph.  £v.  56. 

T  Betts  V.  New  Hartford,  25  Conn. 
185;  vol.  1  Greene  Ev.  >ji  537. 

341 


g319  LAW   OF  JUDGMENTS.  [Cliap.  XII. 

ecution  for  theft  in  taking  the  same  goods.  ^     A.  was  indict- 
ed and  convicted  of  obstructing  a  highway.     After  the  re- 
moval of  the  obstruction,  ho  commenced  an  action  against 
B.  for  using  the  same  highway.     In  this  action  the  question 
arose  whether  the  conviction  coukl  bo  pleaded  against  A.  as 
an  estoppel.     The  court  held  that  it  could  not,  but  that  it 
might,  however,  bo  placed  in  evidence  for  the  purpose  of 
showing  that  the  locus  in  quo  was  a  highway.^     The  chief 
reason  for  excluding  the  record  of  a  criminal  prosecution 
from  evidence  in  a  civil  case  is,  that  the  parties  to  the  two 
proceedings  are  different.     One  who  has  been  damaged  by 
some  criminal  act  of  another  has  a  claim  for  remuneration, 
independent  of  the  right  of  the  public  to  proceed  against 
the  offender,  and  to  inflict  the  penalty  prescribed  by  law. 
This  right  to  compensation  in  damages  ought  not  to  be,  and 
is  not,  dependent  on  the  success  or  failure  of  the  prosecu- 
tion conducted  by  the  people.     If  it  were,  the  party  most 
injured  would  be  lorejudiced  by  a  proceediDg  to  which  he 
was  not  a  party,  and  which  he  had  no  jDOwer  to  control.     A 
person  convicted  of  any  offense  is  not  estopped  by  the  con- 
viction from  disputing  the  facts  on  which  it  is  based,  in  a 
civil  action,  because  his  adversary  in  the  civil  action  Avould 
not  have  been  barred  if  the  prosecution  had  terminated  in 
an  acquittal.     Notwithstanding  the  weight  of  reason  and  of 
precedent,  opposing  the  admission  of  any  record  of  a  crim- 
inal cause  as  an  estoppel  in  any  civil  action,  it  must  be  ad- 
mitted that  the  precedents  are  not,  on  this  subject,  consist- 
ent with  one  another.     In  one  case  it  was  declared  not  to 
be  an  error  to  instruct  a  jury,  on  a  trial  in  a  civil  action  for 
an  assault  and  battery,  that  the  conviction  of  the  defendant 
on  an  indictment  for   the   same    offense,  showed   that   the 
plaintiff  was  entitled  to  damages.^     Of  course  judgments  in 
criminal,  like  those  in  civil  cases,  are  always  competent  evi- 
dence of  their  own  rendition.     Thus,  in  an  action  for  ma- 
licious prosecution,  the  record  in  the  criminal  case  may  be 
put  in  evidence  to  establish  the  facts  that  there  was  a  pros- 


1  Hutchinson  v.  Bank  of  Wheeling, 
41  Penn.  S.  42;  Beausoliel  v.  Brown, 
15  La.  An.  543. 

2  Petreu.  Nuttall,  11  Exc.  569. 

342 


3  Moses  v.  Bradley,  3  AVliart.  272 ; 
see  also  Tatlock  r.  Harris,  1  H.  Bla. 
5G9;  Howard  v.  Smith,  2D.  ct  E.  750; 
Maybco  v.  Avery,  18  Johns.  352. 


Chap.  XII.]  AW.iEDS   OF  AJIBITRATORS. 


§§319-320 


edition  resulting  in  an  acquittal.'  In  prosecutions  against 
accessories,  or  against  receivers  of  stolen  goods,  the  con- 
viction of  the  principal  is  admissible,  for  the  purpose  of  es- 
tablishing that  a  conviction  of  the  principal  has  been  had, 
but  not  to  show  that  a  crime  was  committed,  or  that  the 
principal  is,  in  fact,  guilty.^ 

g  319a.  The  Decrees  and  Orders  of  a  Probate  or  Sur- 
rogate's Court,  made  in  the  exercise  of  jurisdiction  con- 
ferred upon  it  by  law,  are  as  final  and  conclusive  as  the  judg-  ^j 
ment  decrees  or  orders  of  any  other  court.  The  character 
and  finality  of  res  judicata  attach  to  the  decisions  made  in  pro- 
bate or  surrogate's  courts,  irrespective  of  the  nature  of  the 
issue  determined,  provided  always  that  the  court  had  juris- 
diction to  determine  it.  Hence,  whether  the  adjudication 
be  for  or  against  the  validity  of  a  will,  for  or  against  grant- 
ing letters  of  administration,  allowing  or  disallowing  an 
account,  granting  or  refusing  to  grant  a  homestead,  it  is  in 
either  case  a  final  settlement  of  the  Inatter  of  which  it  as- 
sumes to  dispose,  and  it  cannot  be  collaterally  attacked, 
impeached  or  avoided  in  the  same  nor  in  any  other  court, 
by  any  of  the  parties  thereto  nor  by  any  person  in  privity 
with  them.^ 


Of 


)20.  Awards  of  Arbitrators. — The  effect  of  a  valid 
award  upon  the  matters  submitted  to  the  arbitrators  is 
equivalent,  so  far  as  the  question  of  estoppel  is  concerned, 
to  the  effect  of  a  valid  judgment.*  "  No  satisfactory  reason 
can  be  assigned  why  a  judgment,  as  an  act  by  the  law,  should 
estop  the  parties,  and  an  award,  which  is  another  name  for 
a  judgment,  which  the  parties  have  expressly  stipulated 


1  Hermau  on  Estoj^pel,  ^  155. 

2  Note  273  to  Pli.Ev. 

3  Harris  v.  Colquit,  44  Geo.  GG3; 
Eose  u.  Lewis,  3  Laus.  350;  Stiles  u. 
Burch,  5  Pai.  135;  Womack  v.  "Wo- 
mack,  23  La.  An.  351;  Eudy  v.  Ulricb, 
GO  Pa.  S.  177;  Penderleath  v.  ]\IcGil- 
livray,  Stuart's  Lower  Canada  E.  470; 
Shropshire  v.  Probate  Judge,  4  How. 
Miss.  142;  Cole  v.  Leak,  31  Miss.  131; 
Crippen  u.  Dexter,  13  Gray  330;  Ab- 


bott v.  Bradstreet,  3  Allen  5S7;  Simp- 
son d.  Norton,  45  Me.  281;  Davie  v. 
McDaniel,  47  Ga.  195;  Caujolle  v. 
Ferrie,  5  Blatchf .  225— S.  C.  13  Wall. 
4G5  ;  Castro  v.  Eichardson,  18  Cal. 
478;  State  v.  McGlj-nn,  20  Cal.  233; 
Judson  V.  Lake,  3  Day  32G;  Gates  r. 
Treat,  17  Conn.  392  ;  Harrison  v, 
Morehouse,  2  Kerr  (New  Brunswick) 
584. 

*  2  Smith's  Leading  Cas.  G71. 

O  A  O 


g320 


LAW  OP  JUDGMENTS. 


[Cliap.  Xll. 


slionld  be  final  as  to  the  subjects  submitted,  should  not  be 
equally  conclusive."^     The  authorities  disagree  in  relation 
to  the  effect  of  an  award,  upon  a  submission  of  all  demands, 
on  a  matter  which  in  fad  was  never  presented  to  the  arbi- 
trators.    In  New  York,  the  position  is  taken,  that  ' '  it  would 
be  a  very  dangerous  precedent  to  allow  a  party,  on  a  sub- 
mission so  general,  intended  to  settle  everything  between 
the  parties,  to  lie  by,  and  submit  only  part  of  his  demands, 
and  then  institute  a  suit  for  the  part  not  brought  before  the 
authorities.     The   object  of  the  submission  was   to  avoid 
litigation;  and  neither  party  is  at  liberty  to  withhold  a  de- 
mand from  the  cognizance  of  the  arbitrators,  on  such  sub- 
mission, and  then  to  sue  for  it."-     Just  and  reasonable  as 
this  view  seems,  it  has  not  met  with  general  approbation. 
On  the  contrary,  it  seems  to  be  well  settled  by  a  decided 
preponderance   of   authorities,    that,    notwithstanding  the 
general  language  of  the  submission,  the  award  will  conclu- 
sively determine  nothing  not  in  fact  submitted;  and  that 
the  prima  facie  final  e&ct  of  the  award  may  be  overthrown 
by  any  evidence  which  sufficiently  proves  that  a  specified 
matter  was   never   presented   to  the  arbitrators. \     But  in 
Massachusetts,  if  a  general  submission  of  all  demands  be 
made,  it  is  in  the  power  of  either  of  the  parties  to  insist 
upon  the  presentation  of  any  claim  held  by  his  adversary; 
and  if  any  party,  upon  being  requested  to  place  any  matter 
before  the  arbitrators,  decline   to    do   so,  he   is  precluded 
from  ■ever  afterward  asserting  it.*     By  following  the  course 
pointed  out  by  this  decision,  most  of  the  evils  arising  from 
permitting  a  party  to  avoid  the  effect  of  an  award  by  show- 
ing that  a  matter  was  overlooked  and  not  presented,  may  be 
avoided.     For  either  party  may,  if  he  wish,  escape  from 


1  Brazill  v.  Isham,  12  N.  Y.  9. 

2  Wheeler  v.  Van  Hoiiten,  12  Jolius. 
311;  Owent».  Boerum,  23  Barb.  187, 
Cases  sustaining  the  N.  Y.  Cases  are 
Smith  V.  Johnson,  15  East.  213;  Bun- 
nell V.  Pinto,  2  Conn.  341.  An  award 
is  conclusive  as  to  the  matters  sub- 
mitted ;  but  if  it  is  doubtful  from  the 
terms  of  the  submission  whether  a 
matter  was  submitted  and  passed 
upon,  then  evidence  should  b«  admit- 

344 


ted  as  to  the  fact  of  the  case.  Keaton 
V.  Mulligan,  43  Geo.  308. 

"•Kiug^J.  Savory,  8  Cush.  30'J;  Ed- 
wards r.  Stevens,  1  Allen,  315;  Bixby 
11.  Whitney,  5  Green] .  192;  Newman 
V.  Wood,  Mart.  &  Yerg.  190;  Buck  v. 
Buck,  2  Verm  420;  Whittemore  v. 
Whittemore,  2  N.  H.2G;  Euglemani;. 
Engleman,  1  Dana  Ky.  437. 

4  Warfield  v.  Holbrook,  20  Pick.  531. 


Chap.  XII.]  BILL  OE  REVIEW.  §§320-323 

the  vexation  of  subsequent  litigation,  so  far  as  regards  any 
pretension  of  his  adversary  of  which  he  has  any  knowledge. 
Still,  it  would  seem  more  logical,  and  more  consistent  with 
the  principles  applied  to  other  legal  controversies,  to  re- 
quire each  party  to  remember  his  own  demands,  instead  of 
requiring  his  adversary  both  to  ascertain  and  suggest  the 
existence  of  such  demands,  or  to  be  subjected  to  the  incon- 
venience of  another  litigation. 

§  321.  General  Submission. — A  general  submission  of 
all  actions,  and  causes  of  action,  and  of  all  quarrels,  con- 
troversies, trespasses,  damages  and  demands  whatsoever, 
authorizes  the  arbitrators  to  take  cognizance  of  questions 
concerning  real  property.  The  law  does  not  require  a  more 
specific  submission  as  to  one  kind  of  property  than  as  to 
another.^ 

§  322.  Matters  not  in  Dispute. — It  is  generally  conceded 
that  the  meio  existence  of  a  cause  of  action  will  not  bring 
it  within  a  general  submission,  if  it  is  not  a  matter  of  dis- 
pute between  the  parties  wdien  the  agreement  to  submit  to 
arbitration  is  consummated.-  But  the  submission  of  a  con- 
troversy growing  out  of  a  specified  contract  or  transaction, 
or  of  an  account  relating  to  a  particular  course  of  dealing 
must  be  so  regarded  that  neither  party  shall  be  allowed  to 
rebut  the  conclusive  effect  of  the  award,  by  showing  that 
some  item  was  not  laid  before  the  arbitrators.^  But  a  judg- 
ment on  an  award  in  favor  of  the  builder  and  against  the 
owner  of  a  house  upon  a  submission  of  all  demands,  is  no 
bar  to  an  action  against  the  builder  by  the  owner,  to  recove,r 
a  sum  which  he  was,  subsequently,  though  before  payment  of 
the  award,  compelled  to  pay  to  discharge  a  mechanic's  lien.* 

§  323.     Bill  of  Revie-w. — A  complaint  for  the  review  of 
a  judgment  is  in  the  nature  of  a  writ  of  error.     A  second 


1  Sellick  V.  Adams,  15  Johns.  197; 
Munro  v.  Allaire,  2  Cai.  327;  Marks 
V.  Marriott,  1  Ld.  Raym.  Ill;  Byers 
V.  Van  Deusen,  5  Wend.  268. 

2  Eaves  y.  Farmer,  4  T.  E.  116; 


Robinson  v.  Morse,  29  Vorm.  401; 
Trescott  v.  Baker,  29  Verm.  459. 

^Briggs  V.  Brewster,  23  Vt.  100; 
Dunn  V.  Murray,  9  B.  &  C.  780. 

*  Halo  V.  Huse,  10  Gray,  99. 

315 


§§323-324 


LAW  OF  JUDGMENTS. 


[Chap.  XII. 


complaint  to  review  the  same  judgmcDt,  after  a  final  hear- 
ing on  the  former  complaint  will  not  be  permitted.' 

§  324.  Habeas  Corpus. — The  principle  of  res  adjudicata 
is  not  usually  applied  to  proceedings  on  habeas  corpus.  A 
party  may  apply  successively  to  every  court  having  jurisdic- 
tion to  grant  the  writ  for  his  discharge,  until  he  exhausts 
the  entire  judicial  authority  of  the  State.  "How  far  judges 
would  go  in  their  examination  after  a  case  had  once  been 
determined,  is  a  question  which  must  rest  exclusively  in 
their  own  sound  judgment;  but  a  previous  examination 
cannot  prevent  their  right  to  re-examine  the  whole  case  if 
they  should  think  proper  to  do  so."^  On  the  other  hand, 
the  principle  of  res  adjudicata  is  deemed  applicable  in  the 
State  of  New  York  to  proceedings  on  habeas  corpus,  so  far,  at 
least,  as  they  involve  an  inquiry  into  and  a  determination  of 
the  rights  of  husband  and  wife  to  the  custody  of  one  of  their 
children.  The  decision  on  a  former  writ  will  there  be  con- 
clusive in  a  subsequent  application,  unless  some  new  fact 
has  occurred  which  has  ' '  altered  the  state  of  the  case,  or 
the  relative  claims  of  the  parents  to  the  custody  of  the  child 
in  any  material  respect."  The  principles  of  public  policy 
requiring  the  application  of  the  doctrines  of  estoppel  to 
judicial  proceedings,  in  order  to  secure  the  repose  of  society, 
are  as  imperatively  demanded  in  the  cases  of  private  in- 
dividuals contesting  private  rights  under  the  form  of  pro- 
ceeding in  habeas  corpus,  as  if  the  litigation  were  conducted 
in  any  other  form.  Otherwise,  as  is  well  stated  in  the  opin- 
ion of  Senator  Paige  "such  unhappy  controversies  as  these 
may  endure  until  the  entire  impoverishment  or  the  death  of 
the  parties  renders  their  farther  continuance  impracticable. 
If  a  final  adjudication  upon  a  habeas  corpus  is  not  to  be 
deemed  res  adjudicata,  the  consequences  will  be  lamentable. 
This  favored  -writ  will  become  an  engine  of  oppression,  in- 
stead of  a  writ  of  liberty."^    The  courts  of  Massachusetts 


1  Coen  V.  Frink,  2G  Ind.  289;  Stra- 
dcr  V.  Heirs  of  Byrd,  7  Ohio,  184. 

2  lu  tbo  matter  of  Pei'kins,  2  Cal. 
429;  matter  of  Edward  Eiug,  28  Cal. 
247;  Ex  park  Kainc,  3  Blatchf.  C.  C. 
1;  III  re  Gay  lord  Blair,  4  Wis.   522; 

346 


Bell  V.  State,  4  Gill.  301;  Wade  v. 
Judge,  5  Ala.  130;  Ex  2;a?-te  Eeynold's, 
G  Park.  276. 

"■  Mercien  v.  The  People,  25  Wend. 
99. 


Chap.  XII.]  MOTIONS   AND   ORDERS.  §^324-325 

are  in  full  accord  with  those  of  New  York  upon  this  subject. 
In  the  first  named  state  a  person  discharged  upon  habeas 
corpus  was  again  taken  into  custody,  and  was  again  brought 
before  a  court  upon  a  writ  of  habeas  corpus,  when  ho  insisted 
that  his  former  discharge  was  a  conclusive  adjudication,  that 
he  was  entitled  to  his  liberty  unless  some  cause  could  be 
shown  authorizing  his  detention  and  not  existing  at  the 
time  of  his  previous  release.  The  court  said:  "The  deci- 
sion upon  that  writ,  after  notice  and  full  hearing,  discharg- 
ing him  from  the  custody  of  Captain  Wheaton,  was  an 
adjudication  that  he  was  not  liable  to  be  held  as  an  enlisted 
soldier,  and  a  conclusive  determination  of  all  questions  of 
law  and  fact  necessarily  involved  in  that  result.  Any  facts 
which  the  respondent  deemed  material  upon  that  issue 
should  have  been  proved  at  that  hearing,  and  any  ruling  in 
matter  of  law  with  which  he  was  dissatisfied  should  have 
been  then  reserved.  The  judicial  discharge  of  a  prisoner 
upon  habeas  corpus  conclusively  settles  that  he  was  not  lia- 
ble to  be  held  in  custody  upon  the  then  existing  state  of 
facts.  Nor  is  it  material  that  the  petition  for  the  first  writ 
was  made  by  the  prisoner's  father,  and  that  for  the  present 
writ  by  himself.  Neither  the  form  of  the  writ,  nor  the  effect 
of  the  discharge,  is  varied  by  the  name  on  which  the  peti- 
tion is  presented."^ 

§  325.  Motions  and  Orders. — "The  principle  of  res  ad- 
judicata,  which  prevents  a  matter  being  twice  litigated,  has 
no  application  to  a  mere  interlocutory  motion."^  The  de- 
cision of  a  motion  is  never  regarded  in  the  light  of  res  a.d- 
judicata.'"^  Such  are  the  general  declarations  made  in 
divers  cases.  If  conceded  to  be  technically  correct,  they 
are  not  well  calculated  to  convey  to  the  reader  an  accurate 
conception  of  the  effect  of  the  decision  of  a  motion,  upon 
subsequent  proceedings  in  the  same  case.  The  decision  of 
a  motion  will  be  considered  first,  with  regard  to  its  effect 


1  McConolgue's  case  107  Mass.  170, 
citing  ex  Parte  Milbiirn,  9  Pet.  704; 
Spauldiug  u.  People,  7  Hill  301;  Bet- 
ty's case,  20  Law  Keporter,  455. 

2  Belmont  v.  Erie  E.  E.  Co.,  52 
Barb.  p.  637;  Van  Eensselaer  v.  Sher- 


iff, 1  Cow.  501;  Simson  v.  Hart,  14 
Johns.  75;  Akerly  v.  Vilas,  19  Ind.  E. 
Eec.  154;  S.  C.  5  Chicago  Legal 
Newn,  73. 

=!  Snyder  v.  White,  6  How.  Pr.  321. 

347 


g325  LAW  OP  JUDGMENTS.  [Chap.  XII. 

in  other  cases,  and  second,  with  regard  to  its  effect  upon 
motions  involving  simikir  questions,  in  the  same  case.     As 
a  general  rule,  the  decision  of  a  motion  or  of  a  summary  ap- 
plication  "will  not  be  so  far  conclusive  upon  the  parties 
as  to  prevent  their  drawing  the  same  matters  in  question 
again  in  the  more  regular  form  of  a  suit  either  in  law  or 
equity."^     Tho  reasons  for  holding  such  decisions  not  to  be 
conclusive  in  a  regular  suit,  were  in  an  early  case  in  New 
York  stated  to  be,  because  "it  is  a  fact,  well  known,  that 
such  motions  do  not  admit  of  that  grave  discussion  and 
consideration  as  questions  arising  on  demurrer,  in  arrest  of 
judgment  or  for  a  new  trial.     Again:  decisions  on  summary 
application  can  never  be  thrown  into  the  shape  of  a  record, 
and  become  the  subject  of  review  in  any  other  court."-     A 
statute  of  Kansas  provides  that  a  court  may  either  reject 
or  confirm  a  sale  made  under  execution.     It  was  held  that 
while  the  court  might,  on  hearing  the  motion  for  confirma- 
tion, inquire  into  the  fraudulent  conduct  of  the  officers  con- 
ducting the  sale,  or  of  the  bidders  attending  it,  yet  that 
the  decision  of  the  motion  would  not  afiect  the  ultimate 
rights  of  the  parties  in  a  regular  suit  involving  the  same 
issues.     It  will  be  seen  that  the  reasoning  of  the  court  in 
the  case  of  Simson  v.  Hart  (14  Johns.  75),  which  seems  to 
be  a  leading  American  case  upon  the  subject,  is  inapplica- 
ble to  those  motions  which  admit  of  "grave  discussion  and 
deliberation,"  and  are  capable  of  "being  thrown  into  the 
shape  of  a  record,"  and  being  the   "subject  of  review  in 
another  court."     In  Now  York,  the  decision  of  a  motion, 
notwithstanding  the  general  declarations  to   the  contrary 
frequently  made,  may  bo  res  Judicata.     This  is  proved  by 
the  case  of  Divight  v.  St.  John  (25  N.  Y.  203).     Upon  the 
trial  of  that  case,  the  plaintiff  gave  in  evidence  the  papers, 
upon  a  motion  made  by  tlie  defendant  in  the  Supreme  Court, 
to  have  the  judgments  cancelled  and  discharged  of  record, 
as  satisfied.     Upon  the  motion  being  made,  the  court  di- 
rected a  reference  to  inquire  and  report  as  to  the  facta  set 
up  by  the  parties,  which  were  substantially  the  same  as 
those  averred  by  them  in  the  second  action.      Upon  the 
coming  in  of  the  referee's  report,  the  court  denied  the  mo- 

1  Dickenson  f.  Gilliland,  1  Cow.  495.  |     ^  Simson  v.  Hart,  U  Johns.  75. 

348 


Chap.  XII.]       MOTIONS  AND  ORDERS.  §325 

tion  to  satisfy  tLe  judgments.     In  the  second  action  the  de- 
cision of  this  motion  was  claimed  as  res  judicata.     In  allow- 
ing this  claim,  the  Court  of  Appeals  said  :  "Upon  this  point 
it  is  to  bo  observed,  that  some  decisions  (made  before  the 
existence  of  the  code),  especially  that  of  Simson  v.  Hart,  in 
the  Court  of  Errors  (14  Johns.  63),  are  chiefly  based  upon 
the  ground  that  such  summary  proceedings  as  they  passed 
upon  were  then  heard  without  full  proofs,  and  were  not  re- 
viewable— whereas,  in  the  case  before  us,  the  hearing  was 
upon  full  proofs ;  and  the  code  has  entirely  taken  away  the 
other  ground,  by  making  the  proceeding  liable  to  review. 
Since,  then,  a  full  hearing,  with  the  right  of  appeal,  was  open 
to  the  defendant,  on  that  motion,  how  is  he  to  avoid  the  bind- 
ing effect  of  that  decision,  so  far  as  it  covers  what  was  actu- 
ally and  necessarily  tried  on  that  reference?"     After  speci- 
fying the  issues  which,  in  its  judgment,  were  involved  in 
the  motion  in  the  former  action,  and  were  then  determined 
against  the  defendant,   the  court  adds:    "To  this  extent, 
therefore,  the  defendant  should  be  held  concluded  by  that 
adjudication,"  and  "so  much,  then,  is  finally  adjudicated 
against  the  defendant ;  and  this  court  has  now  no  poAver  to 
interfere  Avith  that  decision."     From  this  decision  we  may 
infer  that  in  New  York,  if  not  in  other  States,  the  decision 
of  a  motion  is  as  final  and  conclusive  as  the  decision  of  a 
trial,  if  the  proceedings  permit  of  a  full  hearing  upon  the 
merits,  and  the  order  made  is  liable  to  review  in  some  ap- 
pellate court. ^ 

We  now  come  to  consider  the  question,  whether  the 
granting  or  denying  of  a  motion,  during  the  progress  of  a 
cause,  or  even  after  the  rendition  of  a  judgment,  amounts 
to  a  prohibition  of  a  subsequent  motion  involving  the  same 
issues  vdiich  have  been  considered  and  determined  on  the 
former  application.  "Courts,  to  prevent  vexatious  and 
repeated  applications  on  the  same  point,  have  rules  which 
preclude  the  re-agitation  of  the  same  question  on  the  same 
state  of  facts.  These  rules  are  for  the  orderly  conduct  of 
business,  and  are  not  founded  on  the  principle  of  res  adjudi- 
cata.  It  is  not  uncommon,  in  courts  of  lavf,  to  deny  a  mo- 
tion one  day  and  on  another  to  grant  ifc  on  a  more  enlarged 

1  Petition  of  Livingston,   34  N.  Y.  555. 

349 


g ^325-326  MW  OF  judgments.         i    [Chap.  XII. 

state  of  facts.  "^  The  rules  here  referred  to  seem  to  require 
that  leave  of  the  court  must  first  be  obtained  before  a 
motion  can  be  reneAved  upon  substantially  the  same  grounds 
as  those  upon  -which  the  court  has  already  passed.  "It 
is  entirely  in  the  discretion  of  a  court  to  hear  a  renewal  of  a 
motion  or  not.  They  can,  as  they  deem  advisable,  hear  it 
on  precisely  the  same  papers.  This,  of  course,  will  bo 
rarely  allowed;  it  would  be  productive  of  the  most  serious 
inconvenience;  but,  still,  there  may  be  occasions  which 
would  render  it  essential  to  justice.""  The  reasons  assigned 
for  investing  courts  with  a  discretionary  power  in  rehearing 
matters  decided  upon  motion  are  applicable  only  to  those 
proceedings  from  Avhich  no  redress  can  be  obtained  by 
appeal.  "In  motions  such  as  these,  not  appealable,  a 
grievous  wrong  may  be  committed  by  some  misapprehen- 
sion or  inadvertence  of  the  judge,  for  which  there  would  be 
no  redress,  if  this  power  did  not  exist.  "^  A  motion  may  be 
renewed  without  leave  upon  new  matter;  but  "'the  new 
matter'  which  will  alone  justify  the  renewal  of  a  motion, 
without  leave,  must  be  something  which  has  happened,  or 
for  the  first  time  come  to  the  knowledge  of  the  i)arty  mov- 
ing, since  the  decision  of  the  former  motion."*  "Affidavits 
which  merely  present  additional  or  cumulative  evidence  on 
the  points  before  presented,  are  not  to  be  considered  as 
showing  new  grounds  for  a  motion."^ 

§  326.  Rules  Applied  to  Motions. — It  will  be  seen  from 
an  examination  of  the  cases,  both  English  and  American, 
that  while  the  doctrine  of  res  adjudicata  is  in  general  said 
not  to  be  strictly  applicable  to  motions,  yet  that  the  courts 
have  in  its  place  adopted  rules,  which,  in  the  prevention  of 
the  re-agitation  of  the  same  matter,  operate  substantially 
like  the  rules  of  res  judicata,  so  far,  at  least,  that  the  de- 
cision of  a  motion  heard  upon  the  merits  is  conclusive  of  a 


'  Simson  v.  Hart,  14  Johns.  G3;  Bel- 
mont V.  Erie  R.  E.  Co.,  52  Barb.  037; 

2  White  V.  Munroe,  33  Barb.  C50. 
Dollfus  V.  Frosh,  5  Hill,  493;  Smith 
V.  Spaldhig,  3  Eob.  G15;  Katz  v.  Au- 
gust, cited  iu  Belmont  v.  Erie  11.  E. 
Co.,  52  Barb.  G37. 

350 


3  Same  cases  named  in  preceding 
citation. 

*■  Willctt  V.  Fayerweather,  1  Barb. 
72. 

5  Ray  V.  Connor,  3  Ed.  Ch.  478. 


Chap.  XII.]  RULES  APPLIED  TO   MOTIONS. 


232G 


subsequent  motion  in  the  same  case  proceeding  upon  the 
same  grounds.^  The  court  will  rarely  use  its  discretionary 
powers  to  allow  the  renewal  of  a  motion,  unless  "in  the  cir- 
cumstances of  the  opposition  there  is  something  to  excite 
suspicion  of  unfairness,  or  a  belief  that  the  party  moving 
is  taken  by  surprise,  or  if  the  motion  be  denied  because  of 
some  defect  in  the  moving  papers,  arising  from  ignorance 
of  the  practice.  So  a  party  may  obtain  leave  to  renew,  on 
falsifying  the  affidavit  used  in  opposition,  or  showing  that 
the  facts  stated  in  it  are  explainable  so  as  not  to  amount  to 
a  denial  of  the  grounds  of  the  motion.  A  motion  will 
sometimes  be  opened  on  the  question  being  changed  by 
new  materials  discovered  or  arising  afterwards."^  The 
same  degree  of  diligence  will  be  required  of  a  party  in  sus- 
taining his  motion  as  would  be  sufficient  to  free  him  from 
the  imputation  of  laches,  if  ho  were  engaged  in  the  trial  of 
the  case.  If  he  make  his  application,  and  from  his  own 
neglect  support  it  by  insufficient  materials,  and  the  rule  is 
on  that  ground  discharged,  he  can  not  be  afterwards  allowed 
to  supply  the  deficiency  and  renew  the  application.^  Upon 
motions  as  upon  trials,  public  policy  and  courts  of  justice 
unite  in  requiring  that  there  shall  be  an  end  to  litigation. 
"And  if  a  party  wall  not  be  vigilant  in  prosecution  or  de- 
fense; and  Avill  suffer  the  time  to  go  by  for  the  production 
of  his  proofs  without  a  sufficient  excuse,  he  must  not  after- 
wards complain.'"  In  England,  it  is  a  general  rule,  be- 
lieved to  be  applicable  to  all  the  courts,  that  after  an  appli- 


iDavies  v.  Cottle,  3  T.  E.405;  Mitch- 
ell V.  Allen,  12  Wend.  290;  Dodd  u. 
Astor,  2  Barb.  Ch.  395;  Bascom  v- 
Feazler,  2  How.  Pr.  16;  Greathead  v. 
Bromley,  7  T.  E.  455;  Benjamin  v. 
"Wilson,  G  Lower  Canada,  Jurist,  24G; 
Smith  V.  Coe,  1  Sweeny,  385.  Speak- 
ing of  motions  for  an  oUas  writ  of  pos- 
session, the  S.  C.  of  Cal.  at  Oct. 
Term,  1872,  says:  "The  doctrine  of 
res  acljudicata,  in  its  strict  sense,  does 
not  apply  to  such  motions  made  in  the 
course  of  practice,  and  the  court  may, 
upon  a  proper  showing,  allow  a  re- 
newal of  a  motion  of  this  kind  once 
decided.     But  this  leave  will  rarely  be 


given,  upon  the  ground  that  the  mov- 
ing party  can  produce  additional  evi- 
dence in  support  of  his  motion,  un- 
less it  also  appears  that  a  new  state  of 
facts  has  arisen  since  the  former  hear- 
ing, or  that  the  then  existing  facts 
were  not  presented,  by  reason  of  the 
surprise  or  excusable  neglect  of  the 
moving  party."  Forde  v.  Doyle,  44 
Cal.  635. 

*  Note  to  DoUfus  v,  Frosch,  5  HiU, 
494. 

3  Eegina  v.  Inhabitants  of  Barton, 
9  Dowl.  1,021. 

1  Eay  u.  Connor,  3  Ei  Ch.  478. 

351 


g§326-327  LAW  OF  judgments.  [Chap.  XII. 

cation  lias  been  made  and  lias  failed  on  account  of  defective 
materials,  they  will  not  allow  any  further  inquiry.  An  ex- 
ception exists  when  the  affidavits  have  been  wrongly  en- 
titled, or  there  has  been  some  defect  in  the  jurat.  None 
of  the  cases,  however,  go  to  the  extent  of  holding,  that  un- 
der no  circumstances  can  an  application  be  made  on  fresh 
materials.'  If  a  party  fails  in  his  motion  on  the  ground  of 
any  formal  defects  in  his  papers,  or  from  any  cause  not  af- 
fecting the  merits  of  his  application,  ho  should  ask  leave 
to  renew  the  motion,  or  that  it  be  denied  without  prejudice 
to  another  motion.  If  his  request  is  granted,  it  should  be 
so  stated  in  the  order.  If  his  motion  is  denied  generally, 
it  is  necessary  to  obtain  leave  to  renew  it,  though  it  failed 
on  account  of  some  informality. "  In  Wisconsin,  the  denial 
of  a  motion  to  vacate  a  judgment  is  a  bar  to  a  writ  of  error 
coram  nobis.  ^ 

^  327.     Proceedings    Supplementary    to    Judgment. — 

Proceedings  taken  for  the  purpose  of  obtaining  possession 
of  land  by  the  aid  of  a  writ  of  assistance,  though  upon  due 
notice,  and  after  a  contest  on  the  merits,  are  not,  in  a  sub- 
sequent action,  conclusive  of  any  of  the  matters  involved  in 
the  decision  of  the  motion.  Thus,  where  upon  application 
of  a  purchaser  under  a  decree  of  foreclosure,  a  writ  issued, 
under  which  C.  was  dispossessed  of  certain  premises,  and 
C.  afterwards,  upon  application  to  the  court,  procured  an 
order  restoring  him  to  possession,  on  the  ground  that  the 
land  from  which  he  had  been  removed  was  not  included  in 
that  described  in  the  deed,  such  order  being  obtained  after 
a  full  trial  upon  the  merits  of  the  issue  involved  in  the  ap- 
plication for  restoration,  it  was  decided  that  the  question 
whether  the  deed  did  include  the  same  premises  was  not  res 
judicata,  because  the  estoppel  of  a  former  adjudication  can 
only  arise  "in  a  cause  regularly  tried  on  its  merits  upon 
issues  duly  joined  by  proper  x)leadings  between  the  same 
parties  or  their  privies,'  and  because  the  motions  and 
orders  in  the  former  cause,  "although  the  parties  to  the 
second  action  appeared  in  and  were  interested  in  the  result 

1  Dodgson  V.  Scott,  2  Esc,  457.         {     ^  Second  Ward  Bank  v.  Upham,  14 

2  DoUfus  V.  Froscb,  5  Hill,  493.         \  Wis.  596. 

352 


Chap.  XII.]        SUPPLEMENTARY  PROCEEDINGS.  §327 

of  such  motions,  were  in  no  sense  Judgmeoiis  in  an  action  be- 
tween these  parties  upon  issues  joijled  in  a  cause  pending 
between  them."^ 

Where  money  resulting  from  a  sale  of  property  is  in  court, 
and  the  application  of  a  claimant  is,  upon  motion  in  his  be- 
half, heard,  considered  and  denied,  his  claim  becomes  res 
judicata,  and  he  cannot  maintain  assumpsit  for  the  same 
money. ^  Proceedings  supplementary  to  execution  under 
the  Code  of  California,  requiring  the  judgment  debtor  to 
appear  before  a  court  or  referee,  "to  answer  concerning 
his  property,  are  but  a  substitute  for  a  creditor's  bill  at 
common  law.  It  is  only  a  summary  method  of  purging  the 
debtor's  conscience,  and  compelling  the  disclosure  of  any 
property  he  may  have  which  is  subject  to  execution.  The 
proceeding  was  intended  to  be  summary  and  effectual,  and 
affords  the  widest  scope  for  inquiry  concerning  the  property 
and  business  affairs  of  the  judgment  debtor.  It  is  true 
there  are  no  formal  issues  framed ;  for  in  the  very  nature  of 
the  proceedings  it  would  generally  be  impossible  to  frame 
specific  issues  in  advance  of  the  examination  of  the  judg- 
ment debtor.  Nevertheless,  witnesses  may  be  called  and 
examined  on  either  side;  and  after  hearing  the  case  the 
court  or  referee  is  to  decide  what  property,  if  any,  the 
judgment  debtor  has  which  is  subject  to  be  applied  to  tlie 
satisfaction  of  the  judgment,  and  to  direct  its  application 
accordingly.  The  proceeding  is  purely  judicial,  involving 
an  examination  into  the  facts  upon  sworn  testimony,  and  the 
decision  of  questions  of  law  arising  on  the  facts  proved. 
The  judgment  creditor  and  debtor  are  parties  to  the  pro- 
ceeding, and  each  is  at  liberty  to  call  and  examine  witnesses 
in  respect  to  any  contested  fact  which  may  be  brought  in 
issue  in  the  course  of  the  proceeding.  If  the  parties  to  such 
a  proceeding,  as  between  themselves  and  privies,  are  not 
estopped  from  again  litigating  the  same  matters  in  another 
form  of  action,  the  whole  proceeding  would  be  but  a  judi- 
cial farce,  accomplishing  no  useful  end."  It  is  too  plain  for 
argument,  that  after  an  adjudication  in  such  a  proceeding. 


2  Laugdou  V.  Kaiford,  20  Ala.  532; 
Noble  V.  Cope,  50  Perm.  S.  17. 


iBoggs  V.  glark,  37  Cal.  236;  for 
similax-  views  see  Carter  v.  Clark,  7 
Eobt.  43. 

(23)  853 


§g327-328  LAW  OF  judgments.  [Chap.  XII. 

in  reference  to  tlie  liaLility  of  property  to  be  applied  to  the 
satisfaction  of  the  execution,  the  only  remedy  left  either  of 
the  parties  is  by  taking  an  appeal,  and  that  while  the  adju- 
dication remains  in  force  both  parties  are  estopped  from 
litigating  the  same  question,  in  any  other  case  or  by  any 
other  form  of  proceeding.^ 

§  328.  Effect  of  Appeal. — In  California,^  and  Louisiana,^ 
an  appeal  is  considered  as  suspending  the  operation  of  a 
judgment  for  all  purposes,  so  that  it  is  not  admissible  as  evi- 
dence in  any  controversy  between  the  parties.  This  posi- 
tion is  not  sustained  bv  the  decisions  in  other  States.  On 
the  contrary,  the  effect  of  an  appeal  with  proper  bond  to 
stay  proceedings,  is  held  to  be,  that  it  suspends  the  right 
to  execution,  but  leaves  the  judgment,  until  annulled  or 
reversed,  binding  upon  the  parties  as  to  every  question 
directly  decided.^  In  Connecticut,  the  operation  of  an  ap- 
peal depends  upon  the  character  of  the  jurisdiction  of  the 
appellate  court.  If  the  latter  court  has  authority  to  try  the 
cause  de  novo,  and  to  settle  the  controversy  by  a  judgment 
of  its  own,  and  to  enforce  such  judgment  by  its  own  pro- 
cess, then  it  is  plain  that  by  the  appeal  the  judgment  of 
the  inferior  court  is  not  merely  suspended,  it  is  vacated  and 
set  aside,  and  can  no  longer  have  effect  as  an  estoppel. 
But  if  the  appeal  is  in  the  nature  of  a  writ  of  error,  confer- 
ring power  on  the  appellate  court  to  determine  such  errors 
as  may  have  occurred  at  the  trial  or  in  the  decision  of  the 
cause,  and  giving  the  court,  upon  such  determination,  no 
other  authority  than  that  of  reversing,  modifying  or  affirm- 
ing the  judgment  of  the  inferior  court,  and  of  remitting  the 
case  back  to  the  tribunal  whence  it  came,  that  such  tribunal 
may  conform  its  judgments  and  proceedings  to  the  views 
of  its  superior;  then  the  judgment  appealed  from  does  not, 
until  vacated  or  reversed,  cease  to  operate  as  a  merger  and 
a  bar. 


1  McCullongh  V.  Clark,  41  Cal.  298. 

2  Woodbury  v.   Bowman,    13  Cal. 
634. 

3  Byrne  v.  Prather,  11  La.  An,  G53. 
*  Sage  r.  Harpcnding,  49  Barb.  IGG; 

Harris  v.  Hammond,  18  How.  P.  123; 

354 


Burton  v.  Burton,  28  Ind.  342;  Nill  v. 
Comparet,  IG  Ind.  107 ;  Allen  v.  The 
Major,  9  Geo.  28G. 

^Bank  of  N.  A.  *j.  Wheeler,  28 
Conn.  433;  Curtis  v.  Beardaley,  15 
Conn.  518. 


Cliap.  XII.}  DEFAULTS  AND  ADMISSIONS.  §§329-330 

§  329.  After  Acquired  Rights. — From  the  rule  that  an 
adjudication  affects  no  claims  which  the  parties  had  no 
opportunity  to  litigate,  it  results  that  no  judgment  or  de- 
cree can  ]prejudice  rights  which  had  not  accrued  to  either  of 
the  parties  at  the  time  of  its  rendition.  A  decision  that  a 
right  exists,  or  that  a  wrongful  act  has  been  committed, 
leaves  the  parties  at  liberty  to  show,  at  a  future  time,  that 
since  the  decision  was  pronounced  the  right  has  expired,  or 
the  wrong  has  been  abated.^  Intervening  events  affecting 
the  issue  may  be  shown  to  prevent  a  former  judgment  from 
being  conclusive,  even  where  the  title  has  been  tried  in  a 
writ  of  entry.^  While  a  judgment  of  a  court  on  the  applica- 
tion of  a  parent  for  the  custody  of  a  child  is  res  judicata  as 
long  as  the  circumstances  continue  the  same,  it  ceases  to  be 
so  whenever  any  change  takes  place  in  those  circumstances.' 
Under  no  circumstances  will  a  judgment  or  decree  take  ef- 
fect upon  rights  not  then  existing.*  If  a  decree  be  entered 
quieting  title  and  enjoining  the  defendant  from  making  any 
further  contest  against  the  plaintiff's  title,  this  general  lan- 
guage will  be  confined  to  rights  in  issue,  and  will  not  pre- 
vent the  plaintiff  from  asserting  a  subsequently  acquired 
title.-''  But  a  judgment  is  conclusive  upon  every  right  and 
title  which  the  parties  might  have  asserted,  and  does  not 
become  less  final  because  the  losing  party  afterwards  re- 
ceives another  and  more  formal  evidence  of  title.  If  de- 
fendant has  made  proof  and  payment  under  the  preemption 
laws  before  judgment  against  him,  and  afterwards  procures 
a  patent,  this  is  not  a  * '  new  title  "  upon  which  he  may  make 
another  contest.  "It  is  merely  a  formal  assurance  of  the 
estate  which  he  had  already  acquii-ed  by  j)roof  and  pay- 
ment.""^ 

§330.  Defaults  and  Admissions.  —  The  rule,  that  a 
judgment  is  conclusive  of  every  fact  necessary  to  uphold  it, 


1  McKissicki;.  McKissick,  6  Humph. 
75 ;  Gluckauf  v.  Reed,  22  Cal.  468  ; 
Parker  v.  Standish,  3  Pick.  288  ; 
Dwyer-u.  Govan,  29  Iowa,  126:  Neafie 
V.  Neafie,  7  Johns.  Ch.  1. 


2  Perkins  v.  Parker,  10  Allen,  22 ; 
Morse  v.  Marshall,  97  Mass.  519. 

3  People  V.  Mercein,  3  Hill,  416. 

4  Jones  V.  Petaluma,  36  Cal.  230. 

5  Eeed  v.  Calderwood,  32  Cal.  109. 
6Byers  v.  Neal,  43  Cal.  210. 

355 


§g330-331 


LAW  OF  JUDGMENTS. 


[Chap.  XII. 


1  {^ f.l  admits  of  no  exceptions;  and  is  equally  applicable,  whether 
the  final  adjudication  resulted  from  the  most  tedious  and 
stubborn  litigation,  or  from  a  suit  in  which  no  obstacle  was 

"^^  presented  to  defeat  or  delay  plaintiff's  recovery.^     A  judg- 

ment by  default  is  attended  with  the  same   legal   conse- 
quences as  if  there  had  been  a  verdict  for  the  plaintiff. 
There  exists  no  solid  distinction  between  a  title  confessed 
and  one  tried  and  determined."-      A  stipulation  between 
the  parties,  that  a  particular  kind  of  judgment  may  be  en- 
tered, while  it  ought  to  regulate  the  entry,  has  no  subse- 
quent effect.    It  does  not  alter  the  character  of  the  judgment 
actually  entered,  even  if  the  entry  be  different  from  that 
provided  for  in  the  stipulation."     In  cases  where  no  default 
is  entered,  the  admissions  made  by  either  of  the  parties, 
whether  in  direct  terms  or  by  failure  to  traverse  material 
allegations  when  called  upon  to  do  so,  are  as  conclusive  and 
as  available  as  a  bar,  as  if  they  were  proved  by  witnesses. 
An  admission  by  way  of  a  demurrer  to  a  pleading,  is  just  as 
effective  in  favor  of  the  opposite  party  as  though  made  ore 
tenus  before  a  jury.^*     If  the  tenant,  in  a  writ  of  entry,  plead 
non-tenure,  and  the  plea  be  admitted  by  the  plaintiff,  it 
operates  as  an  estoppel  of  record  in  the  same  manner  and 
to  the  same  extent  as  if  found  by  a  jury.*    Also,  if  the  de- 
fendant  interpose  a  good  plea  in  bar,  to  which  plaintiff 
makes  no  reply,  and  the  court  on  that  account  orders  judg- 
ment to  be  entered  that  the  case  be  dismissed,  such,  judg 
ment,  though  informal,  is  good  as  a  plea  in  bar.^ 


001 
60L. 


English  Cases. — The  decisions  in  England  are, 
no  doubt,  somewhat  at  variance  with  those  in  this  country 


'  Judgment  by  consent  is  binding 
as  res  judicata.  Ellis  v.  Mills,  28  Tex. 
584;  Fletcher  ■«.  Holmes,  25  Ind.  458; 
Dunn  V.  Pipes,  20  La.  An.  27G;  Derby 
t'.  Jacques,  1  Clif.  C.  C-  425.  But  in 
England,  the  application  of  the  prin- 
ciples of  res  judicata  to  consent  judg- 
ments is  denied  by  the  highest  tri- 
bunal in  the  land.  Jenkins  v.  Eob- 
erton,  1  11.  L.  Scotch  Ajip.  117.  See 
also  Goucher  v.  Clayton,  11  Jur.  N. 
S.  107. 

356 


2 Bradford  v.  Bradford,  5  Conn.  127 ; 
Gates  V.  Preston,  41  N.  Y.  113;  Green 
V.  Hamilton.  16  Md.  317;  Note  270  to 
Ph.  Ev.;  Gates  v.  Preston,  3  L.  T. 
Eep.  221. 

•-'  Semple  v.  Wright,  32  Cal.  G59. 

3  Bouchaud  v.  Dias,  3  Deuio,  243, 

<  Hotchkiss  t'.  Hunt,  5G  Mai.  252. 

•-  Campbell  v.  Mayhugh,  15  B.  Monr. 
145. 


Chap.  Xn.]  LAST  JUDGMENT  PREVAILS.  ^^31-332 

in  regard  to  the  effect  of  declining  to  traverse  a  material 
issue  tendered  by  the  opposite  party.  The  tendency  there 
is  to  confine  the  estoppel  to  matters  disputed.  "A  party 
is  estopped  from  saying  that  any  issue  was  improperly  de- 
cided, but  he  is  not  estopped  in  a  future  action  by  an 
admission  on  the  record.  He  is  not  to  be  estopped  by  any 
matter  not  in  dispute  and  upon  which  the  jurj^  never  gave 
judgment.^  A  lessee  was  sued  upon  a  lease  and  made  an 
ineffectual  defense.  Afterwards,  being  sued  for  subse- 
quently accruing  rent  under  the  same  lease,  he  answered 
that,  prior  to  the  former  action,  the  lease  had  been  annulled 
by  an  agreement  between  the  parties  substituting  another 
and  different  lease  in  its  stead.  This  defense  was  not  sug- 
gested in  the  prior  suit,  though  as  available  in  that  as  in 
the  second.  The  former  judgment  w-as  decided  \p  be  no 
bar  to  this  defense.  The  grounds  of  this  decision  were, 
that  a  default,  or  an  admission  by  neglect  to  traverse  in  an 
action  upon  any  contract,  admits  nothing  but  the  execution 
of  the  contract,  and  leaves  the  defendant  at  liberty  to  show, 
in  a  future  action,  any  defense  arising  under  the  contract 
since  its  execution,  and  that  "nobody  ever  heard  of  a  de- 
fendant being  precluded  from  setting  up  a  defense  in  a 
second  action  because  he  did  not  avail  himself  of  the  oppor- 
tunity of  setting  it  up  in  the  first  action."  We  submit,  how- 
ever, that  this  position  is  clearly  untenable.  The  judgment  in 
the  first  action  being  for  rent  upon  a  lease,  could  only  be 
supported  by  a  valid  lease  existing  in  full  force  until  and 
including  the  latest  period  of  time  for  which  rent  was 
allowed.  The  judgment  for  defendant  in  the  second  action 
could  only  be  upheld,  under  the  issues  made  in  that  action, 
on  the  ground  that  the  lease  was  inoperative  during  the 
time  for  which  rent  was  recovered  on  it  in  the  first  action. 
It  is  impossible  that  the  second  judgment  was  not  in  utter 
disregard  of  the  first,  when  the  facts  necessary  to  uphold 
the  one  are  irreconcilable  with  the  facts  necessary  to  uphold 
the  other. 

§332.    Last  Judgment  Prevails.— Eights   acquired   by 
virtue  of -a  judgment  or  decree  are  liable  to  be  terminated 

1  Carter  v.  James,  2  D.  &  L.  236;  See  contra  Boileau  v.  Eutlen,  2  Exc» 
665.  681, 

357 


§^32-333  LAW  OF  JUDGMENTS.  [Chap.  XII. 

in  the  same  manner.  Thus,  if  "two  Mexican  grants  are  so 
confirmed  at  different  dates  that  the  same  land  is  included 
in  both  decrees,  and  the  confirmee  of  the  first  grant,  being 
a  party  to  the  second  confirmation,  fails  to  assert  the  former 
decree  in  his  favor  as  a  bar,  his  rights  will  be  divested  by 
the  second  decree,  i  So  where  A.  foreclosed  a  mort^acre, 
making  B.  a  party  to  the  suit  as  a  subsequent  incumbrancer, 
and  obtained  a  decree  against  B.  as  such;  and  B.  after- 
wards foreclosed  Jus  mortgage,  making  A.  a  party  as  a  sub- 
sequent incumbrancer,  and  also  obtained  a  decree,  it  was 
decided,  that  if  "A."  wished  to  avail  himself  of  Jus  decree, 
he  should  have  set  it  up  in  the  second  action,  and  that,  not 
having  done  so,  his  rights  under  it  were  lost.  2 

§  333.  Reversal.  The  reversal  of  a  judgment  is  a  com- 
plete extinguishment  of  the  estoppel.  It  may  still  have 
effect  as  a  muniment  of  title  in  favor  of  a  purchaser  under 
it ;  but  this  benefit  does  not  extend  to  any  collateral  fact 
found  by  the  verdict  or  judgment.  ^  A  judgment  vacated 
or  set  aside  is  no  longer  a  bar.* 


1  Semple  v.  Wright,  32  Cal.  659 ; 
Semple  v.  Ware,  42  Cal.  G19. 

2  Cboley  v.  Brayton,  16  Iowa,  10. 


'  Wood  V,  Jackson,  8  "Wend.  9. 
^  Taylor  v.  Smith,  4  Ga.  133. 


358 


Chap.  XIII.]  IMPEACHING  JUDGMENT.  §334 


CHAPTER  XIII. 

IMPEACHING  JUDGMENT. 

§  334.    When  Impeachable  and  by  Whom, 

§  335.    What  Strangers  may  Impeach. 

§  336.    For  Fraud  and  Collusion. 

§  337.    For  Error. 

S  337a  Impeaching  in  Bankruptcy. 

§  334.  When  Impeachable  and  by  Whom. — We  have 
already  shown  the  final  and  conclusive  nature  generally 
conceded  to  belong  to  judgments  sought  to  be  attacked 
upon  Jurisdictional  or  upon  other  grounds.  But  there  are  a 
few  instances  in  which,  it  is  said,  judgments  may  be  im- 
peached. A  general  statement  of  the  law  upon  this  subject, 
announced  with  great  apparent  confidence  in  its  correctness, 
has  been  made  in  the  following  language:  " The  distinc- 
tion between  cases  in  which  judgments  may  and  those  in 
which  they  may  not  be  impeached  collaterally,  as  derived 
from  the  authorities  and  founded  in  common  sense,  may  be 
stated  thus:  They  may  be  impeached  by  facts  involving 
fraud  or  collusion,  which  were  not  before  the  court  or 
involved  in  the  issue  or  matter  upon  which  the  judgment 
was  rendered.  They  may  not  be  impeached  for  any  facts, 
whether  involving  fraud  or  collusion  or  not,  or  even  perjury, 
which  were  necessarily  before  the  court  and  passed  upon." 
But  this  language,  in  our  judgment,  does  not  correctly  state 
the  distinction.  It  is  true,  that  fraud  and  collusion  are  the 
chief  grounds  available  for  the  purpose  of  impeaching  a 
judgment.  But  they  are  not  available  for  the  purposes  of 
impeachment,  merely  because  they  were  not  before  the 
court  nor  involved  in  any  of  the  issues  in  the  former  action.  r*7"^va» 
The  parties  to  an  action  can  not  impeach  or  set  at  naught  ^^ui?/* 
the  judgment,  in  any  collateral  proceeding,  on  the  ground  ^(^^ 
that  it  was  obtained  through  fraud  or  collusion.     It  is  their 

1  The  Acorn,  2  Abb.  U.  S.  455. 

359 


g§ 334-336  LAW  OF  judgments.  [Chap.  XIII. 

business  to  see  that  it  is  not  so  obtained.  If,  without  any 
fault  or  neglect  of  one  party,  his  adversary  succeeds,  by 
fraud,  in  obtaining  an  incqviitable  and  unauthorized  judg- 
ment, he  must  take  some  proceeding  prescribed  by  law  to 
annul  the  judgment,  and  can  not,  in  the  absence  of  such 
annulment,  treat  it  as  an  invalid.  It  is  only  third  persons 
who  have  the  right  to  collaterally  impeach  judgments.  They 
are  accorded  this  right  because,  not  being  parties  to  the 
action,  nothing  determined  by  it  is,  as  to  them,  res  judicata. 
The  rule  is  correctly  stated  in  Cowen,  Hill  &  Edwards' 
Note  291  to  Phillips'  on  Evidence,  as  follows:  "Judgments 
of  any  court  can  be  impeached  by  strangers  to  them,  for 
fraud  or  collusion;  but  no  judgment  can  be  impeached  for 
fraud  by  a  party  or  privy  to  it."^ 

§  335.  "What  Strangers  May  Impeach. — It  must  not, 
however,  be  understood  that  all  strangers  are  entitled  to 
impeach  a  judgment.  It  is  only  those  strangers  who,  if  the 
judgment  were  given  full  credit  and  effect,  would  be  preju- 
diced in  regard  to  some  pre-existing  right,  that  are  permit- 
ted to  impeach  the  judgment.  Being  neither  parties  to  the 
action,  nor  entitled  to  manage  the  cause  nor  appeal  from 
the  judgment,  they  are,  by  law,  allowed  to  impeach  it, 
whenever  it  is  attempted  to  be  enforced  against  them. 

§  336.  Fraud. — Whenever  a  judgment  or  decree  is  pro- 
cured through  the  fraud  of  either  of  the  parties,  or  by  the 
collusion  of  both,  for  the  purpose  of  defrauding  some  third 
person,  he  may  escape  from  the  injury  thus  attempted  by 
showing,  even  in  a  collateral  proceeding,  the  fraud  or  collu- 
sion by  which  the  judgment  or  decree  was  obtained,." 


1  Greene  v.  Greene,  2  Gray,  361; 
Peck  V.  AVoodbridge,  3  Day,  30;  Field 
V.  Sanderson,  31  Mo.  542;  Callahan  v. 
Griswold,  9  Mo.  784;  Mason  v.  ivfes- 
senger,  17  Iowa,  2G1;  Townsend  v. 
Kerns,  2  Watts,  183;  Osborne  u.  Moss, 
7  Johns.  IGl;  Mosely  v.  Mosely,  15 
N.  Y.  334;  Williams  v.  Martin,  7  Geo. 
378;  Hammock  v.  McBride,  G  Geo. 
178;  Smith  v.  Henderson,  23  La.  An. 
649. 

3G0 


2  Atkinson  v.  Allen,  12  Verm.  617 
Ordinary  v.  W^illace,  2  Eich.  S.  C.  460 
DeArmond  v.   Adams,    25  Ind.  455 
Hackett  v.  Manlove,  14  Cal.  85 ;  Hall  v. 
Hamlin,  2  Watts,   354;  Sidensparker 
V.  Sidensparker,  52  Me.  481;  Crosby 
V.  Leng,  12  East.  409;  Lloyd  v.  Mad- 
dox,  Moore,  917;  Bridgeport  Ins.  Co. 
V.  Wilson,  34  N.  Y.  281. 


Cliap.  XIII.]       IMPEACHING  IN  BANKRUPTCY.  §§337-337a 

§  337.  Error. — ''It  is  a  general  and  established  rule, 
that  when  a  party's  right  may  be  collaterally  affected  by  a 
judgment,  which,  for  any  cause,  is  erroneous  and  void,  but 
which  he  cannot  bring  a  writ  of  error  to  reverse,  he  may, 
without  reversing  it,  prove  it  was  erroneous  and  void  in  any 
suit  in  which  its  validity  is  brought  in  question.' 


'U 


§  337a.  Impeaching  in  Bankruptcy. — A  judgment  may 
be  impeached  for  the  purpose  of  showing  that  it  was  pro- 
cured and  suffered  for  the  purpose  of  avoiding  the  opera- 
tion of  the  national  bankrupt  act.  To  successfully  impeach 
it,  it  must  be  shown — 1st,  that  it  was  procured  and  suffered 
within  four  months  prior  to  the  filing  the  petition  in  bank- 
ruptcy, and  with  a  view  of  giving  plaintiff  a  preference  over 
other  creditors;  2d,  that  the  defendant  was  insolvent  at  the 
time;  3d,  that  the  plaintiff  had  reasonable  cause  to  believe 
the  defendant  insolvent,  and  procured  the  judgment  to  se- 
cure a  preference  over  other  creditors.  Upon  being  so  im- 
peached it  will  be  held  invalid,  and  all  proceedings  based 
thereon  set  aside,  as  being  superseded  by  the  bankruptcy 
proceedings.^  But  if  the  judgment  be  procured  less  than 
four  months  before  filing  the  petition,  it  is  valid  if  not  in- 
tended to  prefer  one  creditor  over  another,  and  thereby  to 
thwart  the  objects  which  the  act  was  intended  to  accom- 
plish.^ The  act  was  not  designed  to  discourage  diligent 
creditors  in  collecting  their  debts,  nor  will  it  rob  them  of 
their  liens  procured  through  such  diligence,  and  not  in  fraud 
of  the  act.* 

But  except  for  the  purpose  of  showing  that  it  was  designed 
as  a  means  of  avoiding  the  equal  distribution  of  the  debtor's 
property  among  his  creditors,  a  judgment  is  no  more  liable 
to  collateral  impeachment  in  proceedings  under  the  bank- 
rupt act,  than  it  is  to  such  impeachment  in  the  courts  of  the 


1  Vose  V.  Morton,  4  Cusli.  27;  Leon- 
ard V.  Bryant,  11  Met.  370;  Down  v. 
Fuller,  2  Met.  135;  Griswokl  v.  Stew- 
art, 4  Cow.  458. 

2  Buchanan  v.  Smith,  7  N.  B,  Keg. 
513  ;  "Wilson  v.  City  Bank,  6  Id.  270  ; 
In  re  Price  Fuller,  1  Saw.  C.  C.  245. 


3  Biddle's  Appeal,  68  Pa,  St.  13. 

^In  re,  Kerr  2  B.  E.  124;  In  re. 
Campbell  B.  E.  Sup.  36  ;  S.  C.  1  L. 
T.  B.  30  ;  S.  C.  7  A.  L.  Eeg.  100 ;  In 
re,  Schnepf  B.  R.  Sup.  41;  S.  C.  7  A. 
L.  Eeg.  214;  S.  C.  2  Bt.  72. 

361 


J337a 


LAW  OF  JUDGMENTS. 


[Chap.   XIII. 


State  where  it  was  rendered.-  After  quite  a  number  of  de- 
cisions in  the  lower  courts,  to  the  contrary,  it  is  now  settled 
by  the  judgment  of  the  Supreme  Court  of  the  United  States, 
"  1st,  That  something  more  than  passive  non-resistance  of  an 
insolvent  debtor  to  regular  judicial  proceedings,  in  which  a 
judgment  and  levy  on  his  property  are  obtained,  when  the 
debt  is  due  and  he  is  without  just  defence  to  the  action,  is 
necessary  to  show  a  preference  of  a  creditor,  or  a  purpose 
to  defeat  or  delay  the  operation  of  the  bankrupt  act ;  2d, 
That  the  fact  that  the  debtor,  under  such  circumstances, 
does  not  file  a  petition  in  bankruptcy,  is  not  sufficient  evi- 
dence of  such  preference,  or  of  intent  to  defeat  the  opera- 
tion of  the  act ;  3d,  That,  though  the  judgment  creditor  in 
such  case  may  know  the  insolvent  condition  of  the  debtor, 
his  levy  and  seizure .  are  not  void  under  the  circumstances, 
nor  any  violation  of  the  bankrupt  law  ;  4th,  That  a  lien  thus 
obtained  by  him  will  not  be  displaced  by  subsequent  pro- 
ceedings in  bankruptcy  against  the  debtor,  though  within 
four  months  of  the  filing  of  the  petition."^ 


1  In  re,  Burns,  1  B.  R.  174;  S.  C.  B. 
E.  Sup.  38;  S.  C.  7  A.  L.  Eeg.  105;  S. 
C.  24  Leg.  Int.  337  ;  In  re,  Campbell 

B.  E.  Sup.  36;  S.  C.  1  L.  T.  B.  30;  S. 

C.  7  A.  L.  Eeg.  100  ;  MeKinsey  v. 
Harding,  4  B.  E,  11;  Palmer  v.  Pres- 


ton, 45  Vt.  159 ;  In  re,  Whitehouse,  4 
B.  E.  15  ;  In  re,  Eobinsou,  2  B.  E. 
108;  6  Blatchf.  253. 

2 1  Wilson  V.  Bank  of  St.  Paul,  1 
Am.  L.  T  (N.  S.)  1. 


362 


Chap.  XIV.]  JUDGMENT  LIEN.  gg274-275 


CHAPTEE  XIV. 

OF  THE  JUDGMENT  LIEN. 
PART  I.— NATURE  AND  CREATION  OF  THE  LIEN. 

§  338.  Nature  of.  ' 

§  339.  Creation  of. 

S  340.  Final  Judgment. 

§  341.  Controlled  by  Law. 

§  342.  Includes  Interest. 

§  343.  Docketing. 

§  344.    Docketing,  Correction  of. 

§  345.  Docketing,  Judgment  of  Appellate  Court. 

§  346.  Docketing  Justice's  Judgment. 

§  347.  Docketing,  Spelling  of  names  in. 

PART  II~ESTATES  AND  INTERESTS  AFFECTED  BY  THE  LIEN. 

§  348.  Equitable  Estates. 
§  349.  Equity  of  Kedemption. 
§  350.  Lands  fraudulently  conveyed. 
§  351.  Fixtures. 
§  352.  Kents. 
§  353.  Term  of  Years. 
§  354.  Estates  in  reversion  or  remainder. 
§  355.  Lands  exempt  from  execution. 
§  356.  Interests  affected. 
§  357.  Limited  to  Actual  Interest  of  Debtor. 
§  357a.  Against  part  owner. 
§  358.  Against  Trustees  and  Administrators. 
§  359.  Lands  intended  to  be  conveyed. 
§  360.  Vendor's  Lien. 
§  301.  Property  of  'O'ife. 
§  301a.  Wife's  right  of  dower. 
§  362.  Equitable  Lien. 
§  363.  Interests  of  Vendees  and  of  Vendors. 

§  364.  Vendee  entitled  to  notice  of  Liens  against  Vendor  after  ealo  if  in  pos- 
session. 
§  365.  Judgment  for  Purchase  Money. 
§  366.  Precedence  over  Unrecorded  Deed,  etc. 
§  360a.  Purchase  by  Judgment  Creditor. 
§  307.  After  Acquired  Title. 
§  363.  After  acquired  title,  precedence  of  Liens  on. 

PART  III.— OF  THE  PRIORITY  OF  JUDGMENT  LIENS.  , 

§  369.  Judgments  of  same  term. 
§  370.  Fractions  of  a  day. 
§  371.  Office  Hours. 

§  372.  Judgment  on  day  of  sale.  '  i 

■g  373  ConveyanceorlncumbranceofLandeimultanoously  with  its  actiuisltion. 

3G3 


g338  LAW  OP  JUDGMENTS.  [Chap.  XIV. 

S  374.  Priority  acquired  by  diligence. 

§  375.  Priority  acquired  by  superior  equity. 

§  37G.  On  ■writ  of  cn-or  bond. 

§  377.  SalL'S  under  Junior  Judgment. 

§  378.  Preferred  debts  to  United  States. 

PAET  IV.— OF  THE  SUSPENSION  AND  DISCILiRGE  OF  LIENS. 

§  379.  SuspenBion  by  Ca.  Sa. 

%  380.  Suspension  by  rorthcoming  Bond. 

§  381.  Vacation  and  Restoration  of  Judgment. 

§  382.  Stay  of  Execution  on  Appeal. 

§  383.  Dormant  Execution. 

§  384.  Discharge  by  act  of  defendant. 

§  385.  New  County.  S> 

§  380.  By  non-claim. 

§  387.  Discharge  through  Fraud. 

§  388.  Discharge  by  merger  of  Judgment. 

§  389.  Cannot  be  restored  by  agreement. 

§  390.  Discharge  by  sale. 

§  391.  Payment  without  discharge. 

PAET  v.— EXTENDING  AND  EEVIVING. 

§  392.  Scire  Facias  does  not. 
§  393.  Inability  to  execute  process. 
§  394.  Sale  after  expiration  of  Lien. 
§  395.  Equity  will  not  extend  nor  limit, 
g  396,  Transcript  from  another  County. 

/ 
PAET  VI. 

§  397.  Liens  for  future  advances. 

PAET  VII.— FOEECLOSUEE  SUITS. 

§  398.  Merger  of  Lien. 

g  399.  Sale  to  satisfy  Senior  and  Junior  Liens. 

§  400.  Surplus  Proceeds. 

§  401.  Of  different  kinds  of  decrees. 

§  402.  Liens  restricted  by  Statute. 

PAET  VIII.— JUDGMENTS  IN  THE  FEDEEAL  COUETS. 

§  403.  Adoption  of  State  Laws. 

§  404.  How  State  Laws  were  adopted. 

§  405.  Co-extensive  with  jurisdiction  of  Court. 

§  40G.  Decrees  in  Admiralty, 

PAET  I.— NATUEE  AND  CEEATION  OP  THE  LIEN. 

§  338.  Nature  of  Judgment  Lien.— "  A  judgment  is 
not  a  specific  lien  on  any  particular  real  estate  of  the  judg- 
ment debtor,  but  a  general  lien  upon  all  his  real  estate, 
subject  to  all  prior  liens,  either  legal  or  equitable,  irrespec- 
tive of  any  knowledge  of  the  judgment  creditor  as  to  the 

364 


Chap.  XIV.]         NATURE   OF  JUDGMENT  LIEN.  §338 

existence  of  sncli  liens. "^     "In  short,  a  judgment  creditor 
has  no  jus  in  re,  but  a  mere  power  to  make  his  general  lien 
effectual,  ]by  following  up  the  steps  of  the  lav,-,  and  consum- 
mating his  judgment  by  an  execution  and  levy  on  the  land. 
If  the  debtor  should  sell  the  estate,  he  has  no  right  to  fol- 
low the  proceeds  of  the  sale  into  the  hands  of  the  vendor 
or  vendee,  or  to  claim  the  purchase  money  in  the  hands  of 
the  latter.   ' ' xi  judgment  lien  on  land  constitutes  no  property 
or  right  in  the  land  itself.     It  confers  only  a  right  to  levy 
on  the  same  to  the  exclusion  of  other  adverse  interests,  sub- 
sequent to  the  judgment;  and  when  a  levy  is  actually  made 
on  the  same,  the  title  of  the  creditor  for  this  purpose  relates 
back  to  the  time  of  the  judgment,  so  as  to  cut  out  inter- 
mediate incumbrances.     Subject  to  this  the  defendant  may 
convey  the  land.""    As  a  judgment  creditor  has  a  mere  gen- 
eral lien,  he  cannot,  like  a  mortgagee  or  other  holder  of  a 
specific  lien,  sue  for  such  waste  as  injures  his  security.^ 
The  lien  of  a  judgment  attaches  to  all  the  interest  which  the 
debtor  had  at  the  rendition  of  the  judgment.    A  subsequent 
sale  under  the  judgment  relates  back  so  as  to  transfer  all 
the  title  which  the  debtor  had  when  the  lien  attached.*   But 
where  costs  are  incurred  in  enforcing  a  lien,  they  are  to  be 
paid  out  of  the  proceeds  realized,  and  are  preferred  to  the 
lien.     This  is  said  to  be  true  where  there  are  several  judg- 
ment liens,  and,  through  pl'oceedings  instituted  by  the  holder 
of  the  junior  lien,  the  lands  are  sold  for  the  purpose  of  hav- 
ing the  proceeds  distributed  among  the  lien  holders  accord- 
ing to  their  rank  and  precedence,  and  the  sale  does  not 
produce  funds  sufficient  to   satisfy  even  the   senior  lien. 
This,  said  the  court,    "seems  to  us  a  very  just  practice. 
Even  the  senior  lien  could  not  have  been  enforced  without 
the  same  costs,  and  it  has  no  right  to  expect  a  junior  one 
to  await  its  enforcement.     They  have  a  right  to  insist  upon 
a  sale  in  order  to  learn  whether  the  net  proceeds  of  the  sale 
will  reach  them,  and  then  to  seek  satisfaction  otherwise,  if 
it  does  not.     On  the  same  principle  the  expense  of  an  audit 


1  Kodgera  v.  Bonner,  45  N.  Y.  379. 

^  Courad  v.  Insurance  Co.,  1  Pet. 
378,  443;  see  also  Doe  &  Peabody  v. 
McKniglit,  Bar.  (New  Brunswick), 
376. 


^  Launing  v.  Carpenter,  48  N.  Y. 
412. 

■1  Union  Bank  v.  Manard,  51  Mo. 
548. 

365 


§^338-339  LAW  OF  judgments.  [CJiap.  XIV. 

in  distributing  the  fund  is  always  paid  out  of  the  fund 
whether  the  lien  on  which  the  sale  was  had  is  reached  by 
the  proceeds  or  not.''^  "The  lien,  if  not  an  effect  of  the 
judgment,  is  inseparably  connected  with  it.  And  this  is 
the  case,  whether  the  lien  was  created  by  the  judgment  and 
execution  or  by  statute.  And  in  either  case,  where  the 
right  has  attached  in  the  courts  of  the  United  States,  a 
State  has  no  power,  by  legislation  or  otherwise,  to  modify 
or  impair  it."  Therefore,  a  State  law,  passed  after  the  ren- 
dition of  a  judgment  in  a  United  States  court,  requiring 
judgments  to  be  recorded  in  a  particular  way,  in  order  to 
make  them  a  lien,  does  not  impair  or  affect  the  lien  of  such 
existing  judgment,  though  it  be  not  recorded."^ 

§  339.  Creation  of  the  Lien. — The  statutes  of  the  sev- 
eral states  of  this  Union  generally  declare  that  judgments 
shall  be  liens  for  some  specified  period  of  time,  from  the 
date  either  of  their  docketing  or  of  their  rendition.  But  the 
lien  undoubtedly  existed  by  virtue  of  the  common  law.  The 
statutes,  therefore,  only  declare  and  limit  the  common  law 
rules  on  this  subject.  "We  find  it  laid  down  by  compilers 
and  by  commentators  on  the  law  of  England,  that  the  lien  of 
judgments  upon  lands  in  that  country  was  created  by  the 
statute  de  mercatoribns,  ■  also  styled  the  Statute  of  Acton 
Burnell,  11th  of  Edward  the  First,  and  by  the  Statute  of 
Westminster  2d,  13tli  Edward  the  First,  chapter  18,  by  the 
latter  of  which  statutes  the  writ  of  elegit  was  given,  by  en- 
acting that  'he  who  recovereth  in  debt  or  damages,  may 
have  either  a  fieri  facias  on  the  chattels  of  the  debtor,  or  a 
writ  on  which  the  sheriff  shall  deliver  to  him  all  the  chattels 
of  the  debtor,  saving  only  his  oxen,  and  beasts  of  the  plough, 
and  half  of  his  laud,  till  the  debt  be  levied  upon  a  reason- 
able price  or  extent.'"^ 

In  3d  Bac.  Ab.  Execution  D.,  p.  392,  the  law  is  thus 
stated:  "When  the  plaintiff  has  judgment,  he  has  his  election 
to  sue  out  what  execution  he  pleases;  but  he  can  not  regu- 
larly take  out  two  different  executions  on  the  same  judg- 


1  Shelly's  Appeal   38  Pa.  S.   210; 
see  also  McNeil  v.  Bean,  32 .Vt.  429, 

3GG 


^  Massingill  v.  Downs,  7  How.  U. 
S.  7G0. 
=5  Bac.  Ab.  Tit.  Ex. 


Cliap.  XrV'.]  CREATION  OP  THE  LIEN.  §339 

ment,  nor  a  second  of  the  same  nature,  unless  upon  failure 
of  satisfaction  out  of  the  first.  Therefore,  if  the  plaintiff, 
upon  a  judgment  or  recognizance  at  common  law,  sues  out 
an  elegit,  he  can  have  no  capias  ad  satisfaciendum  afterwards 
to  take  the  body,  because  he  hath  determined  his  choice, 
by  that  Avrit,  to  the  goods  and  chattels  and  a  moiety  of  the 
land,  which  having  been  entered  upon  record,  he  is  thereby 
estopped,  and  though  he  takes  but  an  acre  of  land  in  exec- 
tion,  yet  it;  is  held  a  satisfaction  of  the  debt,  be  it  never  so 
great,  because  in  time  it  may  come  out.  The  exceptions 
to  this  restriction  of  the  plaintiffs  right  to  another  execu- 
tion, are  the  return  of  ni/dl  on  the  first,  and  the  return  of 
the  sheriff,  that  he  hath  levied  only  on  the  goods  of  the 
defendant;  because,  plaintiff  being  entitled  to  levy  on  the 
laud  also,  should  not  be  precluded  from  the  benefit  confer- 
red by  the  statute.  But  if  the  land  be  delivered,  though  of 
never  so  little  value,  that  will  be  a  bar,  if  the  sheriff  hath 
delivered  a  moiety  of  the  land  according  to  the  statute."^ 

In  Virginia,  Maryland  and  Mississippi,  in  the  absence  of 
any  statute,  judgments  were  always  considered  as  liens  by 
virtue  of  the  common  law.  The  lien  was  insej)arably  asso- 
ciated with  the  right  to  take  out  an  elegit.  If  this  right 
was  suspended,  the  land  was  free  from  the  lien  during  such 
suspension.  If  the  right  to  take  out  an  elegit  continued 
though  a  Jieri  facias  had  already  issued  and  was  still  out, 
the  lien  continued  though  a  levy  had  been  made  under  the 
fieri  facias.^  A  statute  enacted  by  the  legislature  of  the 
state  of  Texas,  provided  that  whenever  final  judgment  shall 
he  rendered  in  any  court  of  record,  said  judgment  shall  be- 
come a  lien,  etc.  The  words  "shall  be"  were  by  a  majority 
of  the  court,  construed  as  equivalent  to  shall  have  been;  and 
the  act  was  therefore  given  a  retroactive  operation  so  far  as 
to  make  judgments  entered  prior  to  its  passage  liens  upon 


1  Snead  v.  McCouU,  12  How.  U.  S. 
407.  Sec,  also,  in  relation  to  the  cre- 
ation of  the  lien  at  common  law  and 
its  inseparable  connection  with  the 
right  to  issue  the  elegit,  Rankin  v. 
Scott,  12  Wheat.  177;  Scriba  v.  Dcanes, 
1  Brock,  IGG;  Bank  of  U.  S.  u.  Win- 


ston's Esr.,  2  Brock,  952;  Burton  v. 
Smith,  13  Pet.  461;  Shrew  v.  Jones,  2 
McL.  78. 

-  Massingill  v.  Downs,  7  How.'760; 
U.  S.  u.  Morrison,  4  Pet.  124  ;  Tay- 
loo  r.  Thompson,  5  Pet.  358;  Burton 
V.  Smith,  13  Pet.  464. 

367 


g§ 340-342  LAW  OF  JUDGMENTS.  [Cliap.  XIT. 

the  defendant's  real  estate  taking  effect  contemporaneously 
witLi  the  act  itself/ 

§  340.  Final  Judgments. — Because  the  lien  of  a  judg- 
ment is  inseparably  associated  with  the  elegit  or  with  the 
right  to  take  lands  in  execution,  it  follows  that  there  can 
be  no  lien  except  upon  such  judgments  as  the  plaintiff  is 
entitled  to  satisfy  by  levy  upon  the  lands  of  the  debtor.  A 
judgment  by  default  which  is  interlocutory  in  its  nature, 
and  which  cannot  become  final  until  the  amount  is  ascer- 
tained, is  of  itself  no  lien,  nor  will  the  lien  of  the  final  judg- 
ment when  entered  thereon,  relate  back  to  the  entry  of  in- 
terlocutory judgment.* 

§  341.  Includes  Interest. — The  lien  of  a  judgment  in- 
cludes all  amounts  for  which  execution  may  properly  iesue. 
In  the  absence  of  any  statutory  provision,  interest  could  be 
recovered  only  by  an  action  on  the  judgment;  and  was 
therefore  no  lien  until  it  merged  into  the  second  judgment. 
But  in  all  cases  where  the  statute  has  provided  for  the  col- 
lection of  interest  by  execution,  it  is  as  much  a  lien  as  the 
principal  sum  recovered.^ 

g  342.  Lien  not  Subject  to  Control  of  the  Court.— The 
lien  of  a  judgment  or  decree  is  regulated  by  law;  and  can 
not  be  restrained  or  extended  by  the  court  so  as  to  take 
effect  upon  particular  real  estate.^  Its  general  nature  can- 
not be  made  special.  "While  courts  of  law  have  generally 
the  power  to  revoke,  correct  or  quash  their  own  process  in 
the  course  of  their  ordinary  jurisdiction,  there  is  a  manifest 
impropriety  in  a  court  of  law  undertaking  to  grant  relief, 
on  the  ground  of  equities  existing  outside  of  the  process 
in  favor  of  one  not  a  party  to  the  suit.'^  The  character  of 
the  cause  of  action  does  not  affect  the  nature  of  the  lien. 
Therefore  a  judgment  for  purchase  money  has  no  lien 
superior  to  that  of  a  judgment  on  any  other  cause  of  action.® 


1  Moore  v.  Letchford,  35  Tcs.  185; 
Gardner  v.  Spivey  Id.  508. 

2  Davidson  v.  Myers,  24  Md.  538. 
sMower  v.  Kip,   2   Ed.   Cli.   165; 

"Winslo'W  V.  Ancrum,  1  McC.  Ch.  105. 
3G8 


4  Castro  V.  lilies,  13  Tex.  229. 
sClonts  V.  Eich,  12  Fla.  C33. 
c  Fisher  v.  Foote,  25  Tex.   Supp. 
311. 


Chap.  XIV.]   JUDGMENT  IN  APPELLATE  COUET.  §2343-345 

§  343.  Docketing. — "The  doggct,  or  as  it  is  commonly 
called  the  docket  or  docquet,  is  an  index  to  the  judgment 
invented  by  courts  for  their  own  ease,  and  the  security  of 
purchasers,  to  avoid  the  trouble  and  inconvenience  of  turn- 
ing over  the  rolls  at  large.  The  practice  of  docketing 
judgments  seems  to  have  obtained  as  early  as  the  reign  of 
Henry  the  Eighth,  in  the  Court  of  Common  Pleas,  where 
the  dockets  are  entered  on  a  separate  roll  called  the  Docket 
Eoll  or  Common  Docket,  which  is  of  so  high  an  authority 
as  to  even  warrant  an  amendment  of  the  judgment  itself. 
"But  in  the  King's  Bench  the  docket  was  originally  noth- 
ing more  than  a  note  on  parchment  or  paper,  containing  the 
christian  and  surname  of  plaintiff  and  defendant,  the  debt 
and  damages  recovered,  with  the  term  and  number  of  the 
judgment  roll."^  While  judgments  are  for  other  purposes 
valid'as  soon  as  rendered,  they  do  not  become  liens  upon 
real  estate,  at  least  against  subsequent  purchasers,  without 
notice,  until  docketed.^  Such  purchasers  are  not  bound  to 
examine  for  judgment  liens  further  than  to  look  into  the 
proper  dockets.  If  the  clerk  or  prothonotary  fails  to  make 
the  proper  entries  in  his  dockets,,  the  only  remedy  of  an 
aggrieved  judgment  creditor  is  by  action  against  the  officer. ^ 
If  a  subsequent  judgment  be  first  docketed,  a  purchaser 
under  it  will  obtain  the  title  to  the  real  estate  sold,  free 
from  the  lien  of  a  prior  undocketed  judgment.^ 

§  344.  Correcting  Docketing. — If,  by  mistake,  the  judg- 
ment be  docketed  for  too  small  a  sum,  the  docketing  may, 
on  motion,  be  corrected;  but  not  to  affect  the  rights  of  pur- 
chasers and  incumbrancers  acquired  prior  to  the  correction.'"' 

§  345.  Judgment  in  Appellate  Court.  —  If,  on  appeal, 
the  judgment  of  the  inferior  court  be  affirmed,  with  costs  or 


1  Tidd's  Practice,  939. 

2  Foster  v.  Chapman,  4  McCord, 
291. 

^  Ridgway  &  Co.'s  Appeal,  15  Penn. 
S.  177  ;  Woods  v.  Eeynolds,  7  W.  S. 
40G;  Hance's  Appeal,  1  Penn.  S.  408; 
Buchan  v.  Sumner,  2  Barb.  Ch.  195; 
Landon  v.  Ferguson,  3  Russ.  Ch.  349; 
Braithwaite   v.  Watts,    2   Cromp.    & 


(24) 


Jerv.  318;  Brandling  ^^  Plummer,  26 
L.  J.  R.  (N.  S.)  Ch.  326. 

■*  Mann's  Appeal,  1  Penn.  S.  24.  In 
Canada,  judgments  are  not  docketed. 
They  may  be  registered,  and  from  the 
registry  thereof,  they  become  liens. 
Bank  v.  Thompson,  9  Grant's  Ch.  51; 
Doet.'.  Boulton,  9  Q.  B.  (U.  C.)  532. 

5  Hunt  V.  Grant,  19  Wend.  90. 

369 


§g3i5-347  LAW  OF  JDDG:iiE}TTS.  [Chap.  XIV. 

damages,  these  costs  and  damages  do  not  constitute  a  lien 
until  docketed  in  the  lower  court.  If  it  were  otherwise, 
purchasers  could  never  ascertain  what  burdens  were  im- 
posed upon  real  estate  by  judgments  until  the  last  moments 
during  which  appellate  authority  can  be  exercised  had 
elapsed.' 

^  346.  Justices'  Judgment. — In  California,  Justices  of 
the  Peace  are  not  authorized  to  keep  a  lien  docket.  They 
have,  it  is  true,  a  book,  which  is  called  a  docket.  The  pur- 
pose of  this  book  is  to  preserve  a  written  memorial  of  the 
acts  of  the  justices  and  of  the  proceedings  had  and  the  judg- 
ments entered  by  and  before  them.  Justice's  dockets  can- 
not be  employed  to  create  liens.  Their  judgments  become 
liens  when  transcripts  or  abstracts  thereof,  certified  by  the 
justice,  are  filed  in  the  office  of  the  County  Recorder.  This 
transcript  must  formerly  have  been  a  copy  of  the  judgment. 
If  it  was  in  form  similar  to  the  docket  entries  required  to 
be  made  in  the  dockets  kept  by  the  County  Clerk  of  Judg- 
ments in  the  District  Court,  it  was  unauthorized  b}^  law,  and 
created  no  lien.^  But  now  an  abstract  may  be  made  and 
filed  instead  of  a  transcript.  ^ 

§  347,  Spelling  Names. — The  proper  spelling  of  his 
name  is  not  essential  to  a  sufficient  docketing  against  the 
defendant.  All  that  the  law  demands  in  this  respect  is  that 
the  pronunciation  of  the  name  written  by  the  clerk  shall 
correspond  with  that  of  the  name  of  the  person  whose 
realty  is  sought  to  be  charged.  "Identity  of  sound  is  a 
surer  designation  of  the  names  of  persons  than  ideu.tity 
of  orthography.'"  This  rule  is  so  liberally  applied,  that 
though  the  name,  as  spelled  on  the  docket,  would  ordinarily 
be  pronounced  differently  from  the  name  of  the  defendant, 
yet  if,  according  to  the  prevailing  usage  in  that  part  of  the 
country,  the  two  names  would  be  similarly  spoken  by  its 
inhabitants,  the  docketing  will  create  a  lien.  Thus  where, 
in  a  portion  of  the  State  of  Pennsylvania,  "Bubb"  was 
commonly  pronounced  like  Bobb,  the  entry  and  docketing 


1  Daniels  v.  Winslow,  4  Minn.  318; 
Chapin  v.  Broder,  IG  Cal.  403. 
sBagley  v.  Ward,  27  Cal.  3G9. 
3C.  C.  P.  Sees.  807  to  900. 

370 


tMeyer  v.  Fegaly,  39  Pcun.  S.  429; 
on  authority  of  2  Str.  889;  2  Tauut. 
401;  2  Games,  3G2;  3  Cai.  219. 


Chap.  XIV.]  SPELLING  NAMES.  §347 

of  a  judgment  against  "John  Bobb,"  was  held  to  charge 
purchasers  under  "John  Bubb,"  with  notice.  "In  exam- 
ining titles,  the  searchers  must  take  notice  of  the  different 
ways  of  spelling  the  same  name.  But  if  the  spelling  is  so 
entirely  unusual  that  one  would  not  be  expected  to  think  of 
it,  then  it  would  not  impart  notice."*  But  an  exception  to 
4-he  rule  making  a  docketing  preserving  the  identity  of 
sound  suflScient,  exists  when,  though  the  identity  of  sound 
is  still  respected,  the  name  is  indexed  under  the  wrong 
initial.  Thus  while  "Yoest"  and  "  Joest"  are  pronounced 
alike  in  the  German,  searchers  for  judgment  incumbrances 
against  "Yoest,"  are  not  bound  to  consult  the  indices  under 
the  letter  "J."  Nor  is  the  searcher  required  to  know  how 
the  name  he  is  examining  may  be  spelled  according  to  the 
rules  applicable  to  foreign  languages ;  and  to  ascertain 
whether  some  entry  in  the  docket  may,  if  pronounced 
under  those  rules,  represent  the  name  of  the  owner  of  the 
real  estate  he  is  searching.  "The  docket  must  be  kept  in 
our  own  language. "^  A  docketing  against  "A.  Jones"  is 
sufficient  to  charge  the  lauds  of  "Abel  Jones,"  if  he  uni- 
formly writes  his  christian  name  with  the  initial  only,  and 
there  is  no  other  "A.  Jones"  in  the  same  county. ^  The 
addition  of  "junior,"  being  no  part  of  a  man's  name,  is  not 
essential  to  a  docketing  against  a  son,  though  his  father  has 
the  same  name  and  resides  in  the  same  county.^  Under  a 
law  requiring  that  the  docket  ' '  particularly  state  and  set 
forth  the  names  of  the  parties,"  an  entry  of  the  firm  name 
of  the  defendants,  without  their  christian  names,  creates  no 
lien.  5  The  entry  under  the  letter  "  G"  of  "Green,  Wil- 
son &  Mitchell,"  no  christian  name  being  shown,  imparts 
"no  notice,  and  a,ffects  neither  subsequent  purchasers  nor 
judgment  creditors.^  A  judgment  against  defendant  by  a 
wrong  name  being  valid  against  him,  may  be  properly 
docketed  by  entering  the  correct  name  and  showing  also 
the  title  of  the  cause  as  it  stood  with  the  wrong  name.'' 


-iMyer  v.  Fegaly,  39  Penn.  S.  429. 

^  Heil  and  Lauers  Appeal,  40  Peun. 
S.  453;  Buchan  v.  Sumner,  2  Barb. 
Cli.  197. 

3  Jones'  Case,  27  Penn.  S.  33G. 

*  Bidwell  u.  Coleman,  11  Minn.  78. 


5  The  York  Bank's  Appeal,  30  Penn. 
S.  458. 

6  Budd  &  Co.'s  Appeal,  15  Penn.  S. 
177. 

7  Beavan  v.  Countess  Oxford,  3  Sm. 
&G.  11. 

371 


g318  LAW  OF  JUDGMENTS.       [Chap.  XIV. 

PART  II.— ESTATES  AND  INTERESTS  AFFECTED  BY  THE  LIEN. 

g  348.  Equitable  Interests.  At  common  law  a  judg- 
ment lien  did  not  attach  to  a  mere  equity,  '■  though  the 
equity  were  accompanied  by  possession.  -  This  rule  of  the 
common  law  prevails  in  several  of  the  United  States,  ^  and 
is  generally  applied  in  the  absence  of  any  statute  undoubt- 
edly creating  a  different  rule.  Thus,  though  a  statute  jjro- 
vided  that  a  judgment  should  "  be  a  lien  on  all  real  property 
of  the  judgment  debtor  not  exempt  from  execution,  owned 
by  him  in  the  county  at  the  time  of  docketing,"  it  was  held 
not  to  make  a  judgment  a  lien  on  the  equitable  title  of  the 
defendant.-^  This  common  law  rule  has  been  abolished  in 
England.  Judgments  in  that  country  are  liens  on  "all 
lands,  tenements,  rectories,  advowsons,  tithes,  rents  and 
hereditaments  (including  lands  and  hereditaments  of  copy- 
hold or  customary  nature)  of  or  to  which  such  person  shall 
at  the  time  of  entering  such  judgment  or  at  any  time  after- 
wards be  seized,  possessed  or  entitled  for  any  estate  or  in- 
terest whatever,  at  law  or  in  equity,  whether  in  possession, 
reversion,  remainder  or  expectancy,  or  over  which  such  per- 
son shall  at  the  time  of  entering  such  judgment  or  at  any 
time  afterwards  have  any  disposing  power  which  he  might 
without  the  assent  of  another  exercise  for  his  own  benefit."'' 
Laws  having  substantially  the  same  effect  as  the  provisions 
just  quoted  from  the  English  statute,  are  in  force  in  a  ma- 
jority of  the  States  of  the  American  Union.  Equitable 
estates,  while  not  subject  to  any  judgment  lien  which  could 
be  recognized  and  enforced  at  law,  were,  in  equity,  as  much 
bound  by  such  lien  as  legal  estates  were.^  In  Pennsyl- 
vania, on  account  of  the  want  of  a  court  of  chancery,  the 
courts  were,  from  necessity,  obliged  to  treat  all  judgments 
as  having  an  immediate  operation  upon  equitable  as  well  as 
upon  legal  estates.  Therefore  a  party  who,  in  that  State,  pur- 
chased land,  paying  a  portion  of  the  purchase  money  and 
taking  possession,  but  who  has  not  received  any  conveyance, 


^  Jackson  v.  Chapin,  5  Co-w.  485; 
Russell  V.  Houston,  5  Ind.  180;  Jef- 
fries V.  Sherburn,  21  Ind.  112. 

-  Van  Cleve  v.  Groves,  3  Green's 
Ch.  330. 

372 


3  Powell  V.  Knox,  16  Ala.  3C4. 
i  Smith  V.  Ingles,  2  Oregon,  43. 
5  1  and  2  Vict.  C.  110,  $  13. 
fi  Michaus'b    Adui.    v.   Brown,   10 
Gratt.  G12. 


Cliap.  XIV.]  EQUITY  OP  EEDEMPTION. 


g §348-349 


has  an  estate  to  which  a  judgment  lien  may  attach.'  Where 
the  vendor  held  the  right  to  obtain  title  on  certain  terms 
from  the  State,  the  laud  was  held  to  bo  bound  by  a  judg- 
ment lien,  though  not  the  vendor  but  the  vendee  complied 
with  the  terms  and  obtained  the  patent. "  In  the  same  State, 
several  legatees  agreed  to  take  land  instead  of  the  money 
which  would  arise  from  the  land  if  it  were  sold.  It  was 
held  that  a  judgment  against  one  of  them,  rendered  after 
such  agreement,  bound  his  share  as  soon  as  it  was  set  apart 
to  him.  3  The  general  tendency  of  the  American  statutes 
creating  and  regulating  judgment  liens  is  to  make  such 
liens  a  charge  upon  whatever  estate  the  judgment  debtor 
may  have,  irrespective  of  the  question  whether  his  title  is 
legal  or  equitable,  perfect  or  inchoate.  A  judgment  lien 
may,  therefore,  attach  to  lands  purchased  of  the  government 
but  for  which  no  patent  has  issued.*  The  interest  which  is 
subject  to  the  lien  must  be  an  interest  in  the  land  itself.^ 
Hence  a  devise  to  children,  but  giving  their  father  the  right 
to  live  on  the  land  during  his  life,  confers  no  estate  on  the 
father  which  can  be  subject  to  a  judgment  lien.^  An  ease- 
ment consisting  of  a  right  of  way  with  such  an  occupancy 
as  is  necessary  to  give  this  right  effect  is  not  subject  to 
judgment  liens. ' 


349. 


Equity  of  Redemption. — An  equity  of  redemp- 
tion in  real  estate  is  subject  to  the  lien  of  a  judgment.*    If 


'  Anwerter  v.  Matbiot,  9  S.  &  E. 
397;  Kussell's  Appeal,  15  Penn.  B. 
319. 

2  Carkuflf  v.  Anderson,  3  Binn.  4. 

s  Brownfield  v.  Mackey,  27  Penn. 
S.  320. 

*  Levy  V.  Thompson,  4  How.  U.  S. 
17;  Landes  v.  Brandt,  10  Id.  348; 
Huntington  v.  Grantland,  33  Miss. 
453;  Cavender  v.  Smith,  5  Iowa,  157; 
Jackson  i\  Williams,  10  Ohio,  69; 
Rogers  v.  Brent,  5  Gilm,  573. 

**  Morrow  v.Brcnniger,  2  Bawl  e,  185; 
Thomas  v.  Simpson,  3  Barr.  69. 

«  Colhoun  V.  Jester,  11  Pa.  St.  474. 

7  Western  Pa.  R.R.  Co.  u.  Johnston, 
59  Pa.  S.  294. 


8  Julian  V.  Beal,  26  Ind.  220;  Taylor 
V.  Cornelius,  CO  Pa.  St.  187.  But  it  is 
well  settled  in  Illinois  that  the  right  of 
a  judgment  debtor  to  redeem  his  prop- 
erty from  a  forced  sale  thereof,  is  a 
personal  right  which  cannot  be  af- 
fected, impaired  or  transferred  to  an- 
other by  virtue  of  the  lien  of  any  judg- 
ment against  the  debtor ;  in  other 
words,  the  statutory  right  to  redeem 
is  an  interest  to  which  the  lien  does 
not  attach.  Merry  v.  Bostwick,  13 
111.  398;  Watson  v.  Eeissig,  241Id. 
281;  Blair  v.  ChambUn,  39  Id.  526. 


373 


§g 349-350  LAW  OF  JUDGMENTS.  [Chap.  XIV. 

before  the  sale  under  a  decree  of  foreclosure  a  judgment  be 
docketed  against  the  defendant,  it  will  be  a  lieu  on  the  sur- 
plus proceeds  arising  from  the  sale;  but  if  not  docketed 
until  after  the  sale,  it  does  not  constitute  any  lien  on  such 
surplus.  ^  So  a  deed  of  trust  made  to  secure  the  payment 
of  money,  giving  the  trustee  power  to  sell  in  case  of  non- 
payment, tf.nd  reserving  the  right  of  the  grantor  to  redeem, 
will  leave  the  grantor  with  an  interest  to  which  the  lien  of 
a  subsequent  judgment  will  attach.  If  the  trustee  sell  in 
pursuance  of  his  authority,  he  can  convey  title  clear  of  the 
lien.  The  surplus  proceeds  of  the  sale  are  subject  to  the 
lien,  while  in  the  hands  of  the  trustee.  But  he  is  not 
bound  to  search  the  records;  and  therefore  is  relieved  from 
all  liability,  if,  without  any  knowledge  of  the  existence  of 
any  judgment,  he  pays  over  the  surplus  without  regard  to 
the  lien.-  In  Illinois,  it  is  said  that  the  surplus,  after  sale 
by  trustee,  must  be  distributed  among  the  general  creditors, 
regardless  of  liens.  ^ 

g  350.  Lands  Fraudulently  Conveyed. — In  some  of  the 
States,  lands  fraudulently  conveyed  to  avoid  the  payment 
of  debts  due  from  the  grantor,  are,  in  respects  to  the  rights 
of  judgment  creditors,  treated  as  though  no  conveyance 
were  made.  A  purchaser  under  a  judgment  rendered 
against  the  grantor  subsequent  to  the  conveyance,  will 
obtain  the  superior  title  and  will  be  permitted  to  impeach 
the  former  deed  for  fraud.  ^  In  other  States,  it  is  said  that 
a  fraudulent  conveyance  leaves  no  interest  in  the  grantor  to 
which  a  lien  can  attach.  That  judgments  rendered  against 
him  are  not  liens  on  the  real  estate  in  the  order  of  their 
rendition  nor  otherwise.  That  the  judgment  creditor  first 
proceeding  in  equity  to  set  aside  the  conveyance  and  to  sub- 
ject the  land  conveyed  to  the  payment  of  his  judgment, 
will  thereby  obtain  the  fruits  of  his  diligence  and  over- 
reach   persons    having  prior  judgments  against  the  same 


grantor. 


1  Sweet  V.  Jacocks,  6  Pai.  355. 

2  Cook  V.  Dillon,  9  Iowa,  407. 

3  Palilmuu  V.  Shumway,24  111.  127. 

374 


*  Eastman  v.  Scliettler,  13  Wis.  324; 
Miner  v.  Warner,  2  Grant's  Cas.  448. 
5  Lyon  V.  Bobbins,  46  111.  277. 


Chap.  XIV.]  EXEMPT  FROM  EXECUTION.  g§351-355 

§  351.  Fixtures. — Fixtures  pass  by  virtue  of  sales  under 
judgment.  Therefore,  if  by  the  statute  of  a  State,  the  rolling 
stock  of  railroads  are  made  fixtures,  they  are  subject  to 
judgmentliens.  ^ 

§  352.  Rents. — If,  upon  filing  a  bill  to  have  land  sold 
under  the  plaintiif  s  judgment,  a  receiver  of  the  rents  and 
profits  be  appointed,  all  the  moneys  which  come  into  his 
hands  for  rents  are,  in  equity,  subject  to  the  lien  of  the 
judgment.  If  the  lands  be  sold,  for  a  sum  insufficient  to 
satisfy  the  plaintiffs  lien,  these  funds  held  by  the  receiver 
are  immediately  applicable  towards  paying  the  balance 
due.^  A  deed  reserving  a  rent  charge  leaves  the  grantor  an 
interest  in  the  realty  which  may  be  taken  and  sold  under 
execution.' 

g  353.  Term  of  Years. — An  estate  in  lands  for  a  term 
of  years  being  at  common  law  a  chattel,  was  not  bound  by 
the  lien,  and  was  liable  to  be  affected  by  a  judgment  only 
through  a  leyy  and  sale  under  an  execution  like  other  per- 
sonal property.* 

§  354.     Estates  in  Reversion  or  Remainder. — By   the 

common  law,  one  not  having  any  right  to  present  possession, 
could  not  be  regarded  as  having  any  estate  in  lands.  There- 
fore, if  one  have  a  right  to  the  possession  at  some  future  day, 
he  may  transfer  his  right  before  the  time  at  which  it  is  to 
commence  takes  jplace  free  of  any  judgment  recovered  against 
him  before  the  time  of  his  possession  arrives.^ 

§  355.  Property  Exempt  from  Execution. — We  have 
already  seen  that  the  law  of  judgment  liens  resulted  from, 
and  depended  upon  the  right  to  apply  the  real  estate  of  the 
judgment  debtor  to  the  satisfaction  of  the  debt.  Wherever 
this  right  does  not  exist,  by  virtue  of  some  law  exempting 
specified  property  from  execution  and  forced  sale,  no  judg- 
ment can,  as  to  such  property,  take  effect  as  a  lien.     Hence 


1  E.  R.  Co.  V.  James,  6  Wall.  750. 

2  2  U.  S.  V.  Butler,  2  Bltchf.  C.  C. 
£01. 

3  Hurst  V.  Sithgrow,  2  Yeates,  24. 


*  Merry  v.  Hallet,  2  Cow.  497;  Vre- 
deuberg  v.  Morris,  1  John.  Ca.  223. 

^  AsiHuwall  V.  Pirnie,  4  Ed.  Ch.  409; 
Jackson  v.  Parker,  9  Cow.  73. 

375 


j §355-350 


LAW  OF  JUDGMENTS. 


[Chap.  XIY. 


homesteads  exempted  from  execution  by  statute,  are  there- 
after, as  long  as  they  retain  their  homestead   character, 
clear  from  all  judgment  liens;  and  may,  notwithstanding 
judgments  docketed  against  their  owners,  be  by  them  con- 
veyed or  encumbered  Avithout  furnishing  any  opportunity 
for  such  liens  to  attach.'     But  if  the  relinquishment  of  the 
homestead   claim  so  far  precede   the   conveyance   of  the 
homestead,  that  they  cannot  be  regarded  as  simultaneous 
acts,  then,  an  opportunity  being  given  for  the  attaching  of 
liens,  the  purchaser  receives  the  property  subject  to  all 
judgments  docketed  against  the  grantor  at  the  time  of  the 
conveyance.^     By  early  decisions  of  the  Supreme  Courts  of 
Wisconsin  and  Minnesota,   statutes   providing   in  general 
terms  that  judgments  should  be  liens  on  all  the  defendant's 
real  estate,  were  construed  as  extending  such  liens  over 
homesteads,  which  by  law  were  exempt  from   sale  under 
execution.      As   a   consequence   of   this   construction,    the 
owner  of  a  homestead  could  not  alienate  it,  without  at  the 
same  moment  by  removing  the  homestead  character  leaving 
the  property  liable  to  be  sold  under  any  judgment  against 
the  alienor  at  the  date  of  the  conveyance.^    As  a  judgment 
is  no  lien  on  a  homestead,  if  property,  by  abandonment  or 
otherwise,  loses  its  homestead  character,  prior  judgments 
will  attach  as  of  the  moment  of  the  abandonment,  and  will, 
therefore,  have  no  precedence  over  one  another ;   and  the 
judgment  creditor  who  first  proceeds  to  enforce  his  judg- 
ment, will  thereby  gain  a  priority  over  the  other  judgment 
creditors,  and  will  be  entitled  to  have  his  judgment  first 
satisfied  out  of  the  late  homestead.''     But  if  a  judgment  lien 
has  attached  to  real  estate,  it  cannot  be  divested  by  the  sub- 
sequent occupation  of  the  premises  as  a  homstead.'' 

^  356.     The  Interests  affected  by  the  Lien. — Whenever 
a  lien  attaches  to  any  parcel  of  property,  it  becomes  a  charge 


'  Monroe  v  May,  9  Kans.  475;  Mor- 
ris V.  Ward,  5  Id.  24.7;  Lamb  v.  Shays, 
14  Iowa  567;  Wiggins  v.  Chance,  45 
111.  175. 

2  Marriner  v.  Smith,  27  Cal.  C49  ; 
Green  v.  Marks,  25  111.222;  Ackley 
V.  Chamberlain,  IG  Cal.  181. 

376 


•''  Hoytv.  Howe,  3  Wis.  752;  Folsom 
V.  Carlis,  5  Minn.  335;  Tillotson  v. 
Millard,  7  Id.  513.  See  to  same  ef- 
fect. Smith  V.  Brackett,  36  Barb.  571. 

i  Bliss  V.  Clark,  39  111.  596;  McDon- 
ald V.  Crandall,  43  111.  231. 

^  Elston  V.  Eobiusou,  21  Iowa,  537. 


Chap.  XIV.] 


LIEN  COXFINED,  ETC. 


§§356-357 


upon  the  precise  interest  which  the  judgment  debtor  has, 
and  no  other.      The  apparent  interest  of  the  debtor  can 
neither  extend  nor  restrict  the  operation  of  the  lien,  so 
that  it  shall  encumber  any  greater  or  less  interest  than  the 
debtor  in  fact  possesses.     "Under  our  system,  judgments 
are  liens  upon  all  interests  in  real  estate,  legal  or  equitable. 
And  it  is  wholly  immaterial,  as  between  the  parties,  whether 
the  interest  of  the  judgment  debtor  appears  of  record  or 
not."^     Where  judgments  are  liens  upon  equitable  interests, 
such  interests  are  bound,  whether  the  instruments  or  con- 
veyances attesting  the  defendant's  rights  are  recorded  or 
unrecorded.^    The  charge  cast  upon  lands  by  a  judgment 
lien,  can  in  no  wise  be  limited  or  impaired  by  any  act  or 
omission  of  the  debtor.     The  creditor  has  a  charge  on  the 
interests  of  the  defendant  in  the  land  just  as  they  stood 
at  the  moment  the  lien  attached.     Neither  by  conveyance 
nor  by  mortgage,  nor  by  making  or  accepting  a  lease,  sub- 
sequent to  the  judgment,  can  the  defendant  prejudice  the 
rights  of  the  plaintiflf.     If  the  defendant  accept  a  lease  from 
a  third  person,  the  purchaser  at  the  sale  under  a  lien  exist- 
ing prior  to  such  lease,  is  at  perfect  liberty  to  dispute  the 
title  of  the  defendant's  lessor.^ 


§  357.  Lien  Confined  to  Actual  Interests. — The  judg- 
ment lien  "is  a  lien  only  on  the  interests  of  the  judgment 
debtor,  whatever  it  may  be.  Therefore,  though  he  seems 
to  have  an  interest,  yet  if  he  have  none  in  fact,  no  lien  can 
attach."  The  rights  of  the  lien  owner  cannot  exceed  those 
which  might  be  acquired  by  a  purchase  from  the  defendant 
with  full  notice  of  all  existing  legal  or  equitable  rights  be- 
longing to  third  persons.^  The  attaching  of  the  lien  upon 
the  legal  title  forms  no  impediment  to  the  assertion  of  all 
equities  previously  existing  over  the  property.^  The  judg- 
ment lien  being  general,  is  liable  to  be  displaced  in  equity 


1  Lathrop  v.  Brown,  23  Iowa,  40. 

2  Eichter  v.  Selin,  8  S.  &  K.  425  ; 
Niantic  Bank  v.  Dennis,  37  111.  381. 

STinney  v.  Woolston,  41  III.  215. 
4  Churchill  u.  Morse,  23  Iowa,  229. 
6  0'Eourke  v.   O'Connor,  39  Cal. 
442, 


6 Coster's  Ex.  v.  Bank  of  Geo.,  24 
Ala.  37,  64;  Walke  v.  Moody,  G5  N. 
C.  599;  Filley  v.  Duncan,  1  Neb. 
134. 


377 


§357  LAW  OF   JL-DGMENTS.  [Cliap.  XIV. 

in  favor  of  a  lien  having  greater  equity.     Thus  where  A., 
being  unable  to  pay  for  a  lot,  agreed  with  C,  that  the  lat- 
ter should  advance  money  to  so  improve  the  property  pur- 
chased,  that  such  a  sum  could  be  borrowed  upon  it  as 
security,  as  would  enable  him  to  make  the  necessary  pay- 
ment to  D.,  the  owner.     The  conveyance  from  D.  was  to  be 
held  as  an  escrow  until  the  state  of  the  improvements  to  be 
erected,  warranted  the  loaning  of  the  desired  amount  of 
money.     The  advances  made  by  G.  were  then  to  be  secured 
by  a  second  mortgage.     The  first  mortgage  having  been 
foreclosed,   a   contest  arose   between  C.   and   a  judgment 
creditor  whose  lien  attached  anterior  to  the  date  of  C.'s 
mortgage,  whereupon  it  was  decided  that  as  there  was  no 
period  of  time  when  A.  could  have  held  the  lot  free  from 
the  claims  of  C,  it  was  impossible  for  any  person  to  so  hold 
it  by  virtue  of  a  general  lien  against  A.^     The   judgment 
lien  is,  in  equity,  but  a  charge  on  the  title  held  by  the  de- 
fendant when  the  lien  attaches,  or  which  is  subsequently 
acquired.     It  can  only  hold  the  legal  estate  subject  to  the 
equity.  -     "  It  is  well  settled  that  a  judgment  lien  on  the  land 
of   the   debtor   is   subject  to  every  equity  which   existed 
against  the  debtor  at  the  rendition  of  the  judgment ;  and 
courts  of  equity  will  always  limit  the  lien  to  actual  interest 
of  the  judgment  debtor."^    "The  lien  of  the  judgment  creates 
a   preference   over   subsequently   acquired   rights,    but   in 
equity  does  not  attach  to  the  mere  legal  title  to  the  land,  as 
existing  in  the  defendant  at  its  rendition,  to  the  exclusion 
of  a  prior  equitable  title  in  third  persons.     Guided  by  these 
considerations,    the    court   of    chancery   will    protect   the 
equitable  rights  of  third  persons  against  the  legal  lien,  and 
will  limit  that  lien  to  the  actual  interest  which  the  judgment 
debtor  had  in  the  estate  at  the  time  the  judgment  was  ren- 
dered."*   Hence,  if  a  deed  may  be  set  aside  in  equity  against 
the  grantee  for  duress,  the  same  relief  may  be  had  agaiast 
a  judgment  creditor  of  the  grantee.^ 


iTfiUman  v.  Farley,  1  Barb.  280. 

2  Whitwarth  r.  Gaugain,  1  Ph.  728; 
Burgh  V.  Francis,  3  Swanst.  53G,  n. ; 
Finch  V,  Earl  of  Wiachelsea,  1  P. 
Wma.  277. 

378  ^ 


s  Ellis  V.  Tousley,  1  Pai.  Ch.  280; 
Morris  v.  Mowatt,  2  Pai.  Ch.  58G. 
*  Brown  v.  Pierce,  7  Wall,  205. 
5  Baker  v.  Morton,  12  Wall.  150^ 


Chap.  XIV.]  AGAINST  TRUSTEES,  ETC.  §g357a-358 

§  357\ — Aj  :dgment  entered  against  a  part  owner  binds 
his  moiety  of  the  property,  but  is  subject,  as  in  the  case  of 
ownership  in  severalty,  to  all  existing  rights  and  equities. 
Property  may  stand  in  the  name  of  copartners  as  tenants  in 
common,  while  it  is  in  equity  regarded  as  the  property  of 
the  copartnership.  The  partners  or  the  creditors  of  the 
firm  may  insist  that  real  estate  be  treated  as  partnership 
assets.  In  such  a  case,  a  judgment  against  either  partner 
would  take  effect  as  a  lien  upon  his  legal  title,  and  on  that 
only.  It  could  not  confer  on  the  judgment  creditor  any 
right  to  withdraw  any  portion  of  such  realty  from  the  firm 
assets.  1  If  the  lands  of  a  cotenant  be  subject  to  a  judgment 
lien,  such  lien  will  after  partition  attach  to  his  share  of  the 
land  as  set  off  to  him,  or  in  case  the  land  is  sold,  then  to  his 
share  of  the  proceeds. " 

§  358.  Against  Trustees  and  Administrators. — Trustees 
have  no  right  or  authority  to  act  in  opposition  to  their 
trusts ;  nor  to  proceed  in  relation  to  the  trust  estate  in  a 
different  matter  from  that  provided  in  the  instrument  creat- 
ing the  trust.  If  they  hold  lands  with  power  to  sell  or 
mortgage  on  specified  conditions,  they  cannot  affect  the 
title  by  proceeding  by  different  means  or  upon  other  con- 
ditions. If  they  seek  to  bind  the  land  by  a  confession  of 
judgment,  their  action  being  without  authority,  creates  a 
lien  on  nothing  but  their  personal  interests,  and  cannot  re- 
sult in  a  transfer  of  the  estate  of  the  cestuis  que  trust.  ^  Ad- 
ministrators are  not  invested  with  the  title  to  the  real 
estate  of  their  intestates.  Judgments  against  them,  even 
in  their  official  capacities,  are  not  liens  on  real  estate.  ^  Such 
judgments  can  be  satisfied  out  of  the  lands  of  the  deceased, 
only  in  the  same  manner  in  which  satisfaction  of  other  de- 
mands may  be  procured;  namely,  by  an  application  to  the 
Probate  Court  for  an  order  directing  the  administrator  to 


1  Meily  v.  Wood,  71  Pa.   St.  48S; 
Hoskins  v.  Johnson,  21  Geo.  625. 

2  Garvin  v.  Garvin,  1  S.  C.  (N.  S.) 
55. 

3  Huntt  &  Ives  v.  Townshend,   31 
Md.  336. 

*  Hamilton  v.  Beardmore,  7  Grant's 


Ch.  286.  Where  a  judgment  against 
an  executor  is  an  admission  of  assets, 
and  he  is  therefore  personally  respon- 
sible, it  is  as  much  a  lien  as  if  ren- 
dered upon  his  personal  debt.  Hig' 
gin's  Trusts,  2  Giff  562;  S.  C.  30,  L. 
J.  K.  (N.  S.)  Ch.  405. 

379 


g^358-360  LAW  OF  JUDGMENTS.  [Chap.  XIV. 

sell  real  esiate.  On  this  application,  tbo  judgment  .is 
neither  entitled  to  be  treated  as  a  lien  nor  as  conclusive 
evidence  of  the  debt.'  At  common  law  no  judgment  could 
be  entered  up  after  the  death  of  the  defendant.  But  by- 
statute  (Car.  2,  C.  8)  it  was  provided  that  the  death  of  either 
party  between  verdict  and  judgment  should  not  thereafter 
be  alleged  for  error  agaiur^t  any  judgment  entered  within 
two  terms  after  verdict.  This  statute  was  construed  as  giv- 
ing full  force  to  the  judgment  authorized  by  its  provisions; 
aud  such  judgments  were  held  to  be  liens  on  the  lands  of 
the  debtor  in  the  hands  of  his  heir.  2  In  California,  judg- 
ment may  be  entered  up  after  a  verdict,  or  the  decision  of 
any  issue  of  fact,  though  one  of  the  parties  has  died  ;  but 
such  judgment  is  no  lien,  and  is  simply  payable  in  the 
course  of  administration.  ^ 

g  350.     Lands  Intended    to   be   Conveyed. — If  A.,    in. 

tending  to  convey  or  incumber  Black  Acre,  through  mistake 
conveys  or  incumbers  White  Acre,  and  he  afterward  corrects 
his  error,  or  his  deed  is  reformed  by  proceedings  in  equity, 
his  grantee  will  acquire  title  superior  in  equity  to  the  lien 
of  any  judgment  rendered  after  the  intended  conveyance  of 
Black  Acre.  4 

§  360.  Vendor's  Lien.  —  A  mortgage,  trust  deed,  or 
other  instrument  given  to  secure  the  purchase  money,  takes 
precedence  over  a  prior  judgment  lien  against  the  vendee.  ^ 
But  if  a  mortgage  bears  date  several  days  after  the  pur- 
chase, and  does  not  purport  to  be  given  to  secure  the  pay- 
ment of  purchase  money,  a  purchaser  is  not,  in  the  absence 
of  actual  notice,  affected  by  the  higher  character  of  the 
mortgage  lien  arising  from  the  nature  of  the  debt  secured 
by  it ;  and  will,  if  the  judgment  lien  accrued  prior  to  the 
date  of  the  mortgage,  obtain  the  title  free  from  the  claim 


1  Stone  V.  "Wood,  16111.  177;  Tread- 
well  V.  Herndon,  11  Miss.  38. 

2  Sandors  v.  McGowran,  12   M.  & 
W.  221;  findl  U.  &  L.  405. 

sCal.  Pr.  Act,  §  202;  C.  C.  P.,  ^ 
669. 

380 


*  Gouverneur  v.  Titus,  G  Pal.  Ch. 
347;  Swarts  i\  Stees,  2  Kansas,  236, 

5  Parsons  v.  Hoyt,  24  Iowa,  154; 
Ilughson  V.  Davis,  4  Grant's  Ch  588; 
lluttan  If.  Levisconte,  16  Q.  B.  (Up- 
per Canada)  495. 


Chap.  XIV.] 


•WITES  DOWEE. 


g§3G0-3Gla 


of  tlio  mortgagee.  1  While  a  judgment  lien  against  a 
grantee  is  ordinarily  subject  to  any  lien  in  favor  of  the 
grantor  for  purchase  money,  whether  recorded  or  not,  yet 
an  exception  probably  exists  in  favor  of  a  judgment  debtor 
who  has  advanced  money,  relying  as  security  for  his  payment 
upon  the  apparently  unincumbered  title  of  the  debtor  in 
the  real  estate.  Potter,  J.,  in  a  recent  case  in  New  York, 
said:  "I  think,  upon  the  whole  authorities  cited,  it  may 
be  laid  down  as  a  sound  rule  of  equity,  that  a  judgment 
creditor  who  advances  his  money  upon  the  faith  of  unin- 
cumbered title  upon  the  record,  without  notice,  is  entitled 
to  the  lien  acquired  thereby,  in  preference  to  secret,  unre- 
corded lien  of  the  vendor  for  a  part  l^f  the  purchase  money; 
that  such  judgment  creditor  is  to  be  regarded  as  a  quasi 
purchaser  for  a  valuable  consideration,  without  notice,"^ 

I  361.  Oh  Property  of  Wife.— The  right  of  a  wife  to 
her  property  after  a  violation  by  the  husband  of  his  marital 
obligations,  is  superior  to  the  lien  of  any  judgment  ren- 
dered against  him  after  such  violation,  and  secures  to  her 
the  immediate  use  of  her  lands  free  from  such  lien,  upon 
her  substantiating  her  right  by  procuring  a  decree  of  sep- 
aration for  the  misconduct  of  her  husband.  The  rights  of 
the  wife  cannot  be  enforced  against  a  bona  fide  purchaser 
without  notice,  under  a  sale  made  before  the  filing  of  the 
bill  for  separation.^ 

g  361''.  "Wife's  Dower. — A  judgment  rendered  against 
a  man  at  any  time  prior  to  his  marriage  creates  a  lien  which 
after  the  marriage  will  continue  to  be  paramount  to  the 
wife's  claim  for  dower  ;*  but  if  the  lien  attaches  subsequent 
to  the  marriage  it  can  not  defeat  the  wife's  right  to  dower.^ 


1  Curtis  V.  Boot,  28  111.  3C7. 

2  Hullett  V.  Whipple,  57  Barb  224. 

3  Van  Duzer  v.  Van  Duzer,  6  Pai. 
Ch.  366;  Sackett  v.  Giles,  3  Barb.  Ch. 
204. 

4  Queen  Anne's  County  v.  Pratt,  10 
M'd  5;  Davidson  v.  Frew,  3  Dev.  3; 
Hodges  V.  McCabe,  3  Hawks,  78;  Lane 
V.  Gover,  3  Har.  &  McH.  ^94;  Bob- 
bins r.  Bobbins,  8  Blackf .  174;  Sand- 


ford  V.  McClean,  3  Pai.  117;  Brown  v. 
Williams,  31  Me.  403;  Bisland  v. 
Hewett,  11  S.  &  M.  164. 

5  Pifer  V.  Ward,  8  Blkf.  252;  Gould 
V.  Luckett,  47  Miss.  116;  Gove  v. 
Gather,  23  111.  634;  Shaeffer  v.  Weed, 
3  Gilm.  511.  If  the  judgment  be 
entered  on  the  day  of  the  marriage  it 
does  not  have  ijrecedence  over  the 
wife's  claim  for    dower,  but  is  sulj- 

381 


§§3G2-3G3 


LAW  OF  JUDGMENTS, 


[Chap.  XIV. 


§  362.  Every  equitable  lien,  to  entitle  it  to  precedence 
over  a  judgment  lien,  ouglit  to  be  founded  on  some  new 
consideration;  for  if  the  equities  be  equal,  the  holder  of  a 
judgment  lien  will  be  allowed  his  legal  rights.  Thus  an 
agreement  to  make  a  mortgage  to  secure  a  pre-existing  debt, 
will  not  be  enforced  as  an  equitable  lien  against  the  lien  of 
a  judgment  rendered  subsequently  to  the  agreement  and 
prior  to  the  execution  of  the  mortgage.^ 

§  363.  Liens  against  Vendors  and  Vendees  before 
Conveyance  Made. — We  have  already  shown  that  the  lien 
of  a  judgment  attaches  to  the  real,  as  contra-distinguished 
from  the  ap'parent  interest  of  the  judgment  debtor.  It 
follows  from  this  rule  that  upon  the  recovery  and  docketing 
of  a  judgment  against  a  vendor  or  a  vendee,  the  interest 
which  may  pass  by  any  sale  made  to  render  such  lien  avail- 
able, will  be  governed,  if  the  lien  be  against  the  vendee,  by 
the  proportion  of  the  purchase  money  paid  by  him ;  and,  if 
it  be  against  the  vendor,  by  the  portion  of  purchase  money 
remaining  unpaid.  In  other  words,  the  purchaser  under  a 
lien  against  a  vendee,  will  be  entitled  to  a  conveyance  from 
the  vendor,  upon  precisely  the  same  terlxis  which  would 
have  been  open  to  the  vendee  under  his  contract;  and  a  pur- 
chaser under  a  lien  against  a  vendor  will  be  compelled  to 
make  a  conveyance  to  the  vendee  upon  precisely  the  same 
terms  upon  which  the  vendor  could  have  been  compelled  to 
convey.  In  all  cases  a  purchaser  at  a  sale  under  a  judg- 
ment "  succeeds  to  the  rights  and  responsibilities  of  the 
judgment  debtor,  and  to  no  other.  "^  If  the  entire  sum  due 
from  the  vendee  be  paid,  a  lien  against  the  vendor  can 
attach  to  nothing  but  the  mere  legal  title,  and  can  transfer 
to  a  purchaser,  with  notice  of  the  payment  made,  nothing 


ordinate  thereto.  Ingram  v.  Morris, 
4  Harr.  Del.  111. '  As  a  judgment  lien 
does  not  affect  the  husband's  seizin,  it 
cannot  until,  by  a  sale,  it  has  trans- 
ferred the  title,  destroy  the  wife's 
right  to  dower;  and  she  may  have  her 
dower  assigned  to  her,  unless  a  sale 
has  been  made,  but  she  holds  the  as- 
signment subject  to  the  contingency  of 
losing  it,  by  a  subsequent   sale  had 

382 


during  the  life  of  the  lien.     Scribner 
on  Dower,  \y.  573. 

1  Dwight  .;.  Newell,  3  N.  Y.  185. 

2  Catlin  V.  Eobinson,  2  Watts,  373; 
Anwerter  v.  Mathoit,  9  S.  &  R.  402; 
McMullen  v.  Weuner,  IG  S.  &  R.  20. 
Purviance  v.  Lemmon,  IG  S.  &  E. 
294;  Staijnis  u.  Nicholson,  2  Oregon, 
332;  Cromwell  v.  Craft,  47  Miss.  44. 


Chap.  XII.]     LIENS  ACCRUING  AGAINST  VENDOR.         §§363-364 


but  the  right  to  hold  such  title  until  the  vendee  asks  for  it, 
and  the  obligation  to  transfer  it  to  the  vendee  when  de- 
manded. 1  If  a  valid  contract  of  sale  be  made,  but  no  part 
of  the  purchase  money  be  yet  paid,  the  purchaser  has  such 
an  equitable  interest  as  courts  of  equity  will  protect  against 
the  lien  of  any  judgment  docketed  subsequently  to  the  mak- 
ing of  the  contract.-  If,  after  lands  are  held  under  an 
agreement  to  sell,  a  judgment  is  docketed  against  the  vendee, 
and  the  vendor  conveys  to  the  vendee,  reserving  a  lien  for 
purchase  money  still  unpaid,  the  lien  of  the  judgment  is 
thereby  enlarged  so  as  to  embrace  the  whole  estate,  subject, 
however,  to  the  vendor's  I'len.^ 

§  364.  Liens  accruing  against  Vendor  after  the  Sale, 
as  notice  to  Vendee. — While  it  is  everywhere  conceded  that 
a  judgment  lien  accruing  against  a  vendor  after  the  making 
of  the  contract  of  sale,  extends  to  all  his  interest  remaining 
in  the  land,  and  entitles  the  purchaser  at  the  sale  to  all 
sums  still  to  be  paid  by  the  vendee,  yet  it  is  well  settled 
that  the  latter,  if  in  possession  of  the  lands  sold,  is  not  bound 
to  ascertain  before  making  each  payment  that  no  judgment 
has  been  obtained  against  his  vendor.  Whoever  takes  and 
keeps  possession  of  land  by  these  acts  of  ownership,  gives 
such  notice  of  his  rights  to  the  whole  world,  that  no  one 
c^n  safely  assume  to  act  in  ignorance  of  them.  He  is  so 
far  exempted  from  the  operation  of  the  registry  acts,  that 
a  deed  made  by  his  grantor  can  in  no  event  prejudice  his 
interests;  and  so  far  exempted  from  the  operation  of  the 
law  charging  all  persons  with  notice  of  the  lien  arising  from 
the  docketing  of  a  judgment,  that  such  docketing,  while  he 
is  in  i^ossession  of  the  land,  is  not  notice  to  him  of  the  charge 


1  Lounsbury  v.  Purdj',  11  Barb.  490; 
Thomas  v.  Kennedy,  24  Iowa,  397; 
McMullan  v.  Wenner,  16  S.  &  R.  18; 
Manly  v.  Hunt,  1  Ohio,  257. 

2  Lane  v.  Ludlow,  2  Paine,  0.  C. 
i;91;  Hampson  v.  Edelen,  2  Harr.  & 
J.  61;  Hiersted  v.  Avery,  4  Pai.  Ch.  9. 

3  Episcopal  Academy  v.  Frieze,  2 
Watts,  16. 

In  North  Carolina,  it  has  recently 
been  held  that  if  a  vendor  of  laud 


take  notes  for  the  part  of  the  pur- 
chase money  remaining  unpaid,  re- 
taining the  title  to  secure  the  payment 
of  such  notes,  and  a  judgment  will  not, 
after  his  death,  constitute  a  lien  on 
the  land  nor  on  the  notes,  but  the 
notes  when  collected  will  be  assets  in 
the  hands  of  his  executors  for  the 
payment  of  debts.  Moore  v.  Byers, 
65  N.  C.  240. 

383 


§364  LAW  or  JUDGMENTS.  [Chap.  XIV. 

thereby  created  on  the  purchase  money  remaining  unpaid. 
He  may,  therefore,  from  time  to  time,  pay  to  his  vendor 
such  sums  as  fall  due;  and  he  will  always  be  entitled  to  the 
benefit  of  such  payments,  unless  it  can  be  shown  that  they 
were  made  with  actual  hioivledge  of  a  lien  on  the  vendor's 
interest  in  the  land.  This  construction  of  the  law  seems  to 
have  been  dictated  by  a  consideration  of  the  hardship  to  be 
inflicted  on  the  vendee  in  possession  by  establishing  a 
different  rule.  "It  may  be  said  a  party  holding  a  contract 
upon  which  payments  remain  to  be  made,  may,  before  mak- 
ing such  payments,  examine  for  judgments  against  the 
vendor;  but  it  would  be  an  intolerable  inconvenience  to  re- 
quire this,  where  the  payments,  as  is  usually  the  case,  are 
to  be  made  annually  or  oftener;  and  should  such  examina- 
tion ever  be  strict,  the  vendee  would  have  to  run  the  risk  of 
an  incumbrance  intervening  while  he  was  going  from  the 
office  where  the  search  was  made  to  the  residence  of  the 
vendor,  to  make  the  payment."'  In  delivering  the  opinion 
of  the  then  highest  court  of  the  State  of  New  York,  grant- 
ing vendees  in  possession  a  like  exemption  from  the  opera- 
tion of  the  doctrine  of  Us  ijendens,  Senator  Seward  said: 
"Was  not  their  possession  notorious;  and  is  it  not  a  well 
settled  principle  of  law,  that  possession  of  land  is  notice  to 
all  the  world,  requiring  those  who  would  concern  them- 
selves in  it,  or  litigate  for  it,  to  take  notice  not  only  of  the 
possession  itself,  but  of  the  right,  title  and  interest,  what- 
ever it  may  be,  of  the  possessor?  Is  it  not  far  more 
equitable  and  just  to  require  the  complainant  thus  to  take 
notice  of  such  an  obvious,  notorious  interest,  than  to  hold 
the  humble  tenant,  located  in  the  woods  in  the  extreme 
western  part  of  the  State,  to  search  the  office  of  the  register 
or  assistant  register  at  Albany  or  New  York,  every  time  an 
installment  becomes  due  on  his  contract,  to  see,  if  pcrad- 
venture,  a  bill  may  not  have  been  filed  by  some  creditor, 
heir  or  devisee,  which  may  possibly  involve  the  vendor's 
title  ?"2 


iMoyer  v.  Hinmnn,  13  N.  Y.  180^ 
reversing  flie  judgment  of  the  Su- 
preme Court  in  same  case  reported  in 
17  Barb.  137;  Hampson  v.  Edelcn,  2 

384 


Harr.  &  J.  C4;  Filley  v.  Duncan,  1 
Nebr.  134. 
■■^  Parks  V.  Jackson.  11  Wend.  464. 


Chap.  XIV.]  LIEN  OP  JUDGMENT,  §^ 364-305 

In  Ohio  a  judgment  becomes  a  lien  as  of  the  first  day  of 
the  term.  A  party  had,  in  that  State,  made  a  parol  con- 
tract for  the  purchase  of  lands  and  had  paid  a  small  part  of 
the  purchase  money.  He  knew  that  an  action  was  pending 
against  his  vendor  which  might  result  in  a  judgment.  Not- 
withstanding this  knowledge  he  paid  the  vendor  the  balance 
of  the  purchase  money  and  received  a  conveyance  of  the 
premises.  A  judgment  was  -subsequently  rendered  against 
the  vendor,  and  if  allowed  to  take  efi'ect  as  of  the  first  day 
of  the  term  had  precedence  over  the  conveyance.  The  ven- 
dor sought  to  have  this  lien  removed  ;  but  the  judgment 
creditor  insisted  that,  to  the  extent  of  the  purchase  money 
remaining  unpaid  on  the  first  day  of  the  term,  the  judgment 
was  a  valid  lien,  which  ought  not  to  be  discharged  without 
payment  of  the  residue  of  the  purchase  price.  The  court 
thought  this  claim  of  the  judgment  creditor  rested  upon 
sound  principles  and  was  well  supported  by  authority.  ' '  The 
defendant  in  error,"  said  the  court,  "  was  under  no  obliga- 
tion to  pay  to  her  vendor  the  remainder  of  the  purchase 
money  during  the  term  of  court  at  which  she  knew  judgment 
might  be  rendered  against  him.  She  might  have  required 
indemnity  against  the  heir  of  such  judgment,  or  retained 
the  unpaid  purchase  money  for  its  extinguishment.  Its 
voluntary  payment  during  the  term  gave  her,  as  we  think, 
no  equity  against  the  judgment  creditor."^ 

§  365.     Lien  of  Judgment  for  Purchase   Money. — To 

the  general  rule  that  a  sale  under  a  judgment  against  a 
vendee  affects  nothing  but  his  interest  in  the  land,  must  be 
admitted  an  exception  arising  in  all  cases  where  the  judg- 
ment is  recovered  for  balance  of  purchase  money.  In  all 
these  cases,  the  judgment  creditor  must  be  considered  as 
selling,  in  addition  to  the  vendee's  present  hiterest,  all  the 
interest  to  which  he  would  have  been  entitled  upon  pay- 
ment of  the  money  sued  for.  The  purchaser,  therefore, 
succeeds  to  the  title  held  by  both  vendee  and  vendor.  ^ 
"Nothing  is  better  settled  than  this,  that  if  the  vendor,  at 
the  time  of  parting  with  his  title,  takes  a  mortgage  or  judg- 


1  Leflferson  v.  Dallas,  20  Ohio  S.  68. 1      «  Vierlieller's  Appeal,  24  Penu.  S. 

1  lOG;  Ziegler's  Appeal,  69  Id.  471. 

(25)  385 


g^3G5-3G6  LAW  OP  judgments.  [Chap.  XIV. 

ment  as  a  part  of  tlio  transaction  to  secure  liis  purchase 
money,  he  retains  a  lien  upon  the  estate  conveyed,  not  to 
be  displaced  by  any  other  encumbrance."  Hence,  if  at  the 
date  of  the  conveyance  a  mechanic's  lien  existed  against  the 
vendee  for  certain  buildings  on  the  land,  such  lien  cannot 
take  precedence  over  a  judgment  entered  on  the  same  day 
the  conveyance  was  made,  to  secure  to  the  vendor  the  pay- 
ment of  the  residue  of  the  purchase  money.  ^ 

g  36G .     Of  the  Priority  of  Unrecorded  Instruments  over 
Judgment  Liens. — Wherever,  under  the  law,  a  deed-  or 
mortgage 2  is  valid  without  being  recorded,  a  subsequently 
attaching  judgment  lien  against  the  grantor  or  mortgagor 
will  not  be  of  any  benefit  to  the  lien  holder  as  against  the 
deed  or  mortgage.     But  a  'purchaser  at  a  sale  under  a  judg- 
ment is  to  the  same  extent  as  if  he  were  purchaser  at  a 
private  or  voluntary  sale,  protected  from  claims  previously 
acquired  by  third  persons  from  the  judgment  debtor,  of 
which  he  has  no  actual  nor  constructive  notice.^     But  if, 
at  the  lime  of  the  sale,  the  purchaser  have  actual  notice  of 
any  legal  or  equitable  right  in  a  third  person,  or  if,  in  the 
absence  of  such  notice,  the   instrument   evidencing  such 
right  be  properly  of  record,  or  if  possession  be  held  under 
it,  then  the  title  acquired  by  the  purchaser  cannot  prejudice 
the  interests  of  such  third  person.''     In  some  of  the  United 
States,   however,    the  registry  laws   so  modify   the   effect 
of  conveyances  and  other  instruments  concerning  real  es- 
tate, as  to  give  a  judgment  lien  precedence  over  any  unre- 
corded instrument  of  which  the  judgment  creditor  had  no 


^  Stoner  v.  Neff,  40  Pa.  St.  2G0. 

2  Norton  u.  Williams,  9  Iowa,  528; 
Bell  V.  Evans,  10  Iowa,  353. 

3  Cathrou  v.  Eade,  1  Sm.  &  G.  423; 
Seevers  v.  Dclashmutt,  11  Iowa,  174; 
Larimer's  Appeal,  22  Pemi.  S.  41; 
Hampton  v.  Levy,  1  McCord  Ch.  107. 
A  jnclgment  creditor  is  not  a  purchaser 
for  valno,  and  therefore  his  lien  is 
subordinate  to  pre-existing  rights. 
Beavan  v.  Oxford,  6  De.  G.  &  M.  k 
G.  507  ;  Goodwin  v.  Williams,  5 
Grant's  Ch.  539 ;  Gillespie  v.  Van 
Egmout,  G  id.  533. 

386 


*  Paine  v.  Mooreland,  15  Ohio,  435; 
Cooper  V.  Blakely,  10  Geo.  253;  Ehle 
V.  Brown,  3  1  Wis.  414;  Jackson  v. 
Chamberlain,  8  W'end.  G25;  Den  v. 
PJchman,  1  Green.  N.  J.  43;  Ayi-es  v. 
Duprey,  27  Tex.  G05;  Morrison  v. 
French,  23  Penn.  S.  421. 

5  Davis  V.  Ownsby,  14  Mo.  170; 
Hoy  V.  Allen,  27  Iowa,  208:  Valentino 
V.  Havener,  20  Mo.  133;  Chapman  v. 
Coats,  20  Iowa,  288;  Byers  v.  Engles, 
IG  Ark. 543. 


Chap.  XIY.]  PURCHASE  by  judgjient  creditor.    §§3GG-3GGa 

knowledge  at  the  date  of  the  attaching  of  the  lien  of  his  judg- 
ment;^ and  the  holder  of  the  lien  takes  all  the  title  the  re- 
cords show  to  be  in  the  judgment  debtor.  -  In  Alabama, 
by  statute,  when  a  conveyance  of  real  estate  is  made,  it  must 
be  recorded  within  sixty  days,  or  it  will  be  void  against 
creditors  or  subsequent  purchasers  without  notice;  under 
this  statute  it  has  been  held  that  if  the  judgment  creditor  is 
not  affected  with  notice  of  an  unrecorded  deed,  he  acquires 
a  lien  not  limited  nor  avoided  by  the  deed,  and  under 
which  a  perfect  title  may  be  acquired  by  a  purchaser  hav- 
ing/«?^  notice  of  the  former  deed ;^  and  in  general,  under  this 
or  similar  statutes,  if  the  lien  once  attaches  so  as  to  take 
precedence  over  prior  deeds  in  favor  of  a  judgment  credi- 
tor, it  is  not  liable  to  be  defeated  by  the  subsequent  record- 
ing before  any  sale  of  a  previously  executed  instrument,  nor 
by  giving  actual  notice  of  the  existence  of  such  instrument.* 

§  36G\  Purchase  by  Judgment  Creditor. — We  have  seen 
that  the  lien  of  a  judgment  is  subordinate  to  all  rights, 
whether  legal  or  equitable,  capable  of  enforcement  against 
the  judgment  debtor  when  the  lien  attached;  but  that  stran- 
gers purchasing  at  an  execution  sale,  become,  thereby,  pur- 
chasers within  the  meaning  of  the  registry  laws,  and  as  such, 
are  protected.  The  judgment  creditor  may  also  become  a 
purchaser  at  the  sale.  In  so  doing  he  may  make  a  bid  and 
thereby  produce  a  complete  or  partial  satisfaction  of  his 
judgment.  The  question  then  arises  whether  he  thereby 
becomes  a  purchaser  for  value,  and  whether  as  such  he  is 
protected  by  the  registry  law  from  infirmities  in  the  debtor's 
title,  of  which,  when  purchasing,  the  creditor  had  no  notice, 
actual  or  constructive.  In  Iowa,  a  judgment  debtor,  at  the 
rendition  of  the  judgment,  held  lands  under  an  implied 
trust,  in  pursuance  of  which,  subsequent  to  the  judgment, 
he  made  a  conveyance  to  his  cestui  que -trust.  The  latter 
failed  to  record  his  deed,  and  the  lands  were  sold  to  the 
creditor  without  any  notice  of  the  deed  or  of  the  facts  out  of 


iGinteau  v.  Wisely,  47  111.  433; 
McFadden  v.  Worthington,  45  111. 
3G2. 

2  Martin  v,  Dryden,  1  Gilm.  187; 
Massey  t>.  Westcott,  40  111.  160. 


3  De  Vendell  v.  Hamilton,  27  Ala. 
15(5. 

*  Pollard  r.  Cooke,  19  Ala.  188; 
Fash  u.  r^avesies,  32  Ala.  451. 

387 


Cheap.  XIY.]  AFTER  ACQUIRED  TITLE.  §g.j6Ga-3G7 

wliicli  it  arose.     Tlio  Supreme  Court  tliouglit  this  a  proper 
case  in  which  to  apply  the  '  'wholesome  rule  of  equity,  that, 
where  one  of  two  innocent  persons  must  suffer,  the  loss  will 
fall  upon  that  party  who  has  been  guilty  of  the  first  negli- 
gence;" and  therefore  sustained  the  title  of  the  creditor 
based  on  the  purchase  under  his  own  judgment.^     This 
case  was  but  an  affirmance  of  a  prior  decision  in  the  same 
State,  declaring  that,  "when  a  creditor  merges  his  judgment 
into  a  title,  without  actual  or  constructive  notice  of  prior 
equities,  he  becomes  a  purchaser  and  is  entitled  to  protec- 
tion in  the  absence  of  equitable  circumstances,   with  any 
other  subsequent  hona  fide  purchaser."-     But  probably  the 
current  of  authorities  dissents  from  the  conclusions  reached 
in  Iowa  and  maintain  that  "to  constitute  a  person  a  hona  fide 
purchaser  within  the  meaning  of  the  statute,  he  must,  upon 
the  faith  of  the  purchase  of  the  property,  have  advanced  for  it 
a  valuable  consideration;"  and  that  "if  he  was  a  creditor  an- 
tecedent to  his  purchase,  and  paid  for  the  purchase  by  a 
credit  on  his  demand,  then,  inasmuch  as  he  has  parted  with 
no  consideration  on  the  faith  of  the  purchase,  he  is  not  a 
bona  fide  purchaser  within  the  meaning  of  the  statute. "^ 

§'367.  After  Acquired  Title. — As  long  ago  as  the  year 
1813,  in  the  case  of  Calhoun  v.  Snyder,  the  judges  in  Penn- 
sylvania, in  deference  to  a  long  course  of  decisions  in  that 
State,  were  constrained  to  decide  that  no  judgment  could 
ever  attach  as  a  lien  upon  lands  in  which  the  judgment 
debtor  had  no  interest,  at  the  date  of  its  rendition.  The 
judge  delivering  this  opinion  at  the  same  time  said,  "I  am 
well  satisfied  that  by  the  Engli.sh  common  law,  lands  pur- 
chased by  the  defendant  after  judgment,  but  aliened  before 
execution,  were  bound  by  the  lien."^  Forty-seven  years 
later  it  was  said  in  the  same  State  that,  * '  Whatever  may  be 
thought  of  the  do.ctrine  of  Calhoun  v.  Snyder,  tliat  a  judg- 
ment lien  does  not  bind  subsequent  acquired  real  estate,  it 
is  too  firmly  established  in  the  jurisprudence  of  this  State, 
to  be  shaken  at  this  day."^    The  rule  thus  established  in 


1  Govcr  V.  Dolieney,  33  Iowa,  36. 

2  Halloway  V.  Platner,  20 Iowa,  121. 
5  Aj'res  V.  Duprey,   27   Tex.   593  ; 

Ormc  V.  Koberts,  33  Tex.  763;  Wright 

388 


1?.  Douglass,  10  Barb.  97;  Dickerson 
u.Tillingbast,  4  Pai.  215. 

4  Calhoun  v.  Snyder,  G  Binnoy,  133. 

s  Walers'  Appeal,  35  Penn.  S.  523. 


Cliap.  XIV.]    TRECEDENCE   OF  JUDGMENT  LIENS.         §^3G7-3G8 

Pennsylvania,  and  confessedly  repugnant  to  the  common 
law,  was  adopted  in  a  fcAv  other  American  cases.  ^  It  is, 
nevertheless,  clearly  repudiated  in  favor  of  the  common 
law  rule  by  the  vast  majority  of  the  American  decisions.  ^ 
The  rule  of  Calhoun  v.  S)iyder  is,  in  Pennsylvania,  restricted 
to  real  estate  in  which  the  judgment  debtor  had  no  interest. 
If  at  the  rendition  of  a  judgment  the  debtor  had  entci-ed 
into  a  binding  contract  for  the  purchase  of  lands,  the  lien 
bound  not  only  his  present  interest  under  the  contract,  but 
all  the  interests  v»diith  he  might  suhsequenihj  acquire  thereby ; 
and  took  precedence  over  a  judgment  entered  against  the 
defendant  immediately  after  his  acquisition  of  the  title  by  a 
conveyance  from  his  vendor.  ^ 

g  36S.  rrecedence  of  Judgment  Liens  on  after  acquired 
Lands. — A  statute  of  the  State  of  Mississippi  provided 
"That  in  all  cases  the  property  of  the  defendants  shall  be 
bound  and  liable  to  any  judgment  that  may  be  entered  up, 
from  the  time  of  entering  such  judgment."  In  considering 
the  effect  of  the  provision  just  quoted  it  was  held  that  as 
the  lien  could  not  attach  to  property  owned  by  another,  it 
could  not  take  ejffect  upon  after  acquired  real  estate  until 
the  moment  of  its  acquisition,  and  that  upon  taking  effect 
it  did  not  relate  back  to  the  rendition  of  the  judgment. 
Prom  this  view  it  follows  that  if  two  judgment  liens  have 
been  docketed  against  a  defendant,  they  will  both  attach 
to  subsequently  acquired  property  at  the  same  moment,  and 
neither  will  have  any  priority  over  the  other  on  account  of 
its  prior  docketing  or  rendition.*  This  construction  seems 
to  be  of  undisputed  correctness,  and  to  be  adopted  wherever 
the  question  has  arisen.^  In  such  cases  the  judgment  liens 
being  equal,  the  holders  thereof  are  permitted  to  acquire 


1  Eoads  V.  Symmes,  1  Hamm.  281; 
Hiirringtou  v,  Shai-p,    1  G.   Greene, 
131;  Stives  v.  Murphy,  4  Hamm...92 
Filley  v.  Duncan,  1  Neb.  134. 

2  Eidge  V.  Prather,  1  Blackf .  401 ; 
Ealston  v.  Field,  32  Geo.  453;  Handly 
V.  Sydenstricker,  4  West  Va.  G05 ; 
Trustees. u.  Watson,  13  Ark.  74;  Ridge- 
ly's  Ex'rs  v.  Gartrell,  3  Har.  &  McH. 


449;  Steele  v.  Taylor,   1  Minn.  274; 
Davis  V.  Benton,  2  Sneed.  GC5. 
2  Stephen's  Appeal,  8  W.  &  S.  186. 

*  Moody  V.  Harper,  25  Miss.  484. 

*  Michaels  v.  Boyd,  1  Ind.  259; 
Davis  V.  Benton,  2  Sueed.  GG5;  Eelfo 
V.  McComb,  2  Head.  558.  See  Sec. 
355  as  to  Homesteads  Abandoned. 


389 


§§368-3G9  LAW  OF  judgments.  [Chap.  XIV. 

priority  in  accordance  with  principles  to  be  stated  in  a  sub- 
sequent section  of  this  chapter. 

PAET  III.— OF  THE  PRIORITY  OF  JUDGMENT  LIENS. 

§  3G9.     Judgments  of  Same  Term. — At  common  haw  all 
judgments  were,  by  legal  fiction,  supposed  to  be  entered 
on  the  first  day  of  the  term  at  which  they  were  recovered. 
But  it  was  a  maxim  of  the  same  law  that,  "A  legal  fiction 
is  always  consistent  with  equity."     Therefore,  whenever  the 
purposes  of  justice  required  it,  the  true  time  of  entering 
judgment  might  be  averred  and  proved.^    "While  neither  the 
existence  of   the  maxim  nor  its  applicability  to  cases  re- 
quiring a  determination  of  the  rights  and  equities  of  lien 
holders  seem  ever  to  have  been  drawn  in  question,  undoubt- 
edly, a  very  decided  contrariety  of  opinion  was  expressed 
by  the  judges  in  deciding  parallel  cases  in  which  the  pre- 
cedence of  judgment  liens  were  considered.     As  between 
different  creditors,  there  would  rarely  be  any  violation  of 
the   principles   of    equity   occasioned    by  placing    on   an 
equality,  judgments  in  fact  entered  on  different  days  of  the 
same  term.     Hence,  we  find  it  declared  that  such  judgments 
are  equal  as  liens,  and  entitled  to  be  paid  pro  rata  out  of 
the  debtor's  real  estate.^     But  this  declaration  Avas,  by  no 
means,  true  in  all  parts  of  the  United  States.     In  Mary- 
land,  judgments  rendered  on  different  days  of  the  same 
term  were  never  treated  as  relating  to  the  first  day  of  the 
term,  but  were  given  effect  as  liens  according  to  the  priority 
of  their  entry. ^     In  Pennsylvania,  for  more  than  a  century 
preceding  the  year  1805,  by  an  uninterrupted  practice,  the 
legal  fiction  was  disregarded,  and  judgments  took  prece- 
dence over  one  another  according  to  the  date  of  their  rendi- 
tion.    "As  between  conflicting  judgment  creditors,  the  well 
known  rule  applied  to  the  truth  of  the  fact  as  to  the  entry 
of  judgments  qui  prior  est  tempore,  potior  est  pire."'^     A  simi- 
lar rule  was  laid  down  at  an  early  date  by  the  Supreme 
Court  of  the  United  States.^     But,  however  the  fiction  of 


1  Broom's  Maxims,  122;  Morgan  v. 
Nance,  26  Geo.  283. 

2  Porter  v.  Earthman,  4  Yerg.  358; 
Johnson  v.  j\Iitchell,  17  Geo.  593. 

390 


3  Anderson  v.  Tuck,  33  M'd.  225. 
i  Welch  V.  Murray,  4  Yeatea,  197. 
5  Welch  V.  Murriiy.  4  Dall.  Penn. 
320. 


Chap.  XIV.]  FRACTIONS  OF  A  DAY.  §§309-370 

law  by  whicL.  judgments  are  considered  as  being  rendered 
on  the  first  day  of  the  term,  may  affect  one  judgment  lien 
in  a  contest  with  other  liens  of  the  same  nature,  it  seems  to 
be  generally  conceded  that  it  cannot  prejudice  the  interests 
of  bona  fide  purchasers.  Whenever  a  purchaser,  before  the 
signing  of  judgment,  without  notice  and  without  being 
guilty  of  any  fraud,  acquires  an  interest  in  real  estate,  that 
interest  cannot  be  charged  with  the  lien  of  any  judgment 
subsequently  entered  against  his  grantor,  though  such  judg- 
ment might,  as  between  itself  and  other  judgments,  rank  as 
though  entered  at  the  beginning  of  the  term,  and  at  some 
time  prior  to  its  actual  rendition.^  Though  a  judgment 
lien  be  regarded  as  attaching  at  the  commencement  of  the 
term,  it  will  not  take  precedence  over  a  conveyance  made  on 
the  first  day  of  the  term,  but  before  the  court  in  fact  met.^ 
In  order  to  rank  as  of  the  first  day  of  the  term  at  which  it 
was  rendered,  the  judgment  must  be  the  final  determination 
of  an  action  which  was  in  such  a  condition  that  it  might 
have  been  tried  and  disposed  of  on  the  first  day  if  it  had 
happened  to  have  the  first  place -on  the  calendar.^  The 
reason  why  judgments  rendered  at  different  dates  were  ever 
treated  as  of  equal  rank,  was  because  all  the  cases  ready  to 
be  tried  at  the  opening  of  a  given  term,  were  equally  enti- 
tled to  the  precedence  arising  from  being  first  decided ;  and 
in  order  to  avoid  giving  any  suitor  an  advantage  due  entirely 
to  the  fortuitous  circumstance  that  his  cause  was  first  called 
for  trial,  it  was  thought  proper,  by  aid  of  a  legal  fiction,  to 
assign  his  judgment  a  place  in  no  wise  superior  to  that  as- 
signed to  others  equally  entitled  to  precedence. 

§  370.  Fractions  of  a  Day. — The  common  law  fiction 
assigning  the  same  period  of  time  to  the  entry  of  all  judg- 
ments of  a  single  term,  is  very  generally  abolished  in  the 
United  States,  either  by  statutory  enactments,  or  by  a  long 
course  of  practice  grown  up  in  defiance  of  the  common 


1  Morgan  v.  Sims,  26  Geo.  283. 

A  judgment  entered  against  a  de- 
fendant who  has  died  since  tHe  first 
day  of  the  term,  is  valid,  because  it  has 
relation  as  of  the  first  day  of  the  term ; 
but  such  a  judgment  is  not  a  lien. 


Nichols  V.    Chapman,  9  Wend.  452; 
Stymets  i;.  Brooks,  10  Wend.  206. 

2  ykepwith's  Ex.  v.  Ci;uningham,  8 
Leigh,  272. 

3  Whithers  v.  Carter,  4  Gratt.  407. 

391 


g370  LAW  OF  JUDGMENTS.  [Chap.  XIV. 

law  of  Englaud.  Therefore  it  is  now,  in  this  country,  more 
important  to  determiuo  whether  the  lien  of  a  judgment  ex- 
tends over  t]ie  whole  of  the  day  on  which  it  attaches,  than 
it  is  to  understand  whether,  under  the  common  law  prac- 
tice, it  extends  over  a  whole  term.  The  decisions  upon 
the  question  whether  fractions  of  a  day  should  be  regarded 
in  determining  the  effect  j)roperly  to  be  accorded  to  a  judg- 
ment lien,  have  extended  over  tliree  classes  of  cases.  The 
first  class  includes  cases  involving  the  precedence  of  judgment 
liens  between  one  another;  the  second  class  includes  cases 
involving  the  relative  priority  of  judgment  over  other 
liens;  and  the  third  class  includes  cases  determining  the 
rights  of  purchasers  in  good  faith  from  judgment 
debtors,  prior  to  the  actual  rendition  and  docketing  of 
the  judgment.  It  seems  to  be  well  settled  in  relation  to 
cases  uf  the  first  class,  that  unless  the  law  provides  for 
fractions  of  days,  all  judgments  entered  on  the  same  day 
will  be  regarded  as  if  entered  at  the  same  time,  and  as 
creating  liens  equal  in  point  of  priority,  and  entitled  to  be 
paid  pro  rata  out  of  the  debtor's  real  estate.^  Still  this 
rule  evidently  does  not  prevail  in  North  Carolina,  for  it  is 
there  decided  that  the  law  will  take  notice  of  fractions  of 
days  in  the  contests  between  creditors  seeking  to  have 
funds  realized  from  the  sale  of  lands  applied  in  satisfac- 
tion of  their  judgment  liens. ^  The  law  applicable  to  cases 
of  the  second  class  is  unsettled.  In  Pennsylvania,  between 
mortgages  and  judgments,  no  fractions  of  days  will  be  con- 
sidered. A  mortgage  and  a  judgment  entered  on  the  same 
day  will  be  regarded  as  taking  effect  simultaneously,  and 
as  entitled  to  be  paid  pro  ruta.^  In  Tennessee,  on  the  other 
hand,  a  mortgagee  is  treated  with  the  same  indulgence 
granted  to  a  purchaser.'*  In  determining  the  rights  of  pur- 
chasers as  opposed  by  holders  of  judgment  liens,  fractions 
of  days  will  undoubtedly  be  considered,  because  it  is  "nec- 
essary for  the  purposes  of  simple  justice  to  ascertain  the 


'  llockliill  V.  Hanna,  4  McL.  555; 
Bruce  v.  Vogel,  38  Mo.  100;  Me- 
chanics' Bank  v.  Gorman.  8  W.  &  S. 
304;  Burney  v.  Boyett,  1  IIow.  Miss. 
39. 

2  Bates  V.  Hindale,   65  N.  C,  423. 

392 


SHendrickson's  Appeal,  24  Penn. 
S.  3G3;  Claason's  Appeal,  22  Penn.  S. 
359.  Sk 

*  Murfee  v.  Carmack,  4  Yerg.  270; 
Berry  u.  Clements,  9  Hump.  312. 


Cliap.  XIV.]  FRACTIONS  OF  A  DAY.  .        §370 

hour  of  the  entry  of  the  lien."^  But,  even  here,  judges 
who  conceded  the  necessity  and  propriety  of  considering 
fractions  of  days,  have,  nevei  theless,  refused  to  enter  into 
any  examination,  heyond  the  record,  in  order  to  ascertain  the 
precise  hour  at  which  a  judgment  was  rendered  or  docketed. 
In  their  opinion  the  matter  of  precedence  was  to  be  ad- 
judged in  favor  of  the  judgment  lien,  unless  ■}ipon  tJie  record 
it  appeared  to  be  subsequent  to  the  purchase,  and  the  in- 
quiry into  the  actual  period  when  the  lien  in  fact  attached 
was,  if  permitted  to  be  pursued  beyond  the  record,  liable 
to  produce  evil  and  inconvenience  not  to  be  compensated 
by  the  probable  good  to  flow  from  such  inquiry.  ^  But  the 
more  sensible  view  is  that  announced  in  Pennsylvania, 
where  it  was  held  that,  in  a  contest  with  a  purchaser  from 
the  judgment  debtor,  "as  an  indispensable  measure  of 
justice,  the  precise  time  at  which  the  judgment  was  entered 
must  be  shown  by  less  than  record  proof,"  and  further, 
that  to  affect  lands  in  the  hands  of  a  purchaser,  a  judgment 
must  not  only  be  simultaneous,  but  anterior.  ^  It  is  a  little 
remarkable  that  the  keen  sense  of  the  "  purposes  of  simple 
justice"  under  which  the  courts  of  the  last  named  State 
have  professedly  been  impelled  to  protect  purchasers,  has 
not  also  operated  for  the  benefit  of  mortgagees  and  other 
lien  holders  who,  like  purchasers,  part  with  some  valuable 
consideration  upon  their  faith  in  a  title  which  seems  to  be 
perfect,  and  which,  in  fact,  is  perfect  at  the  moment  the 
consideration  is  parted  with.  Certainly  if  "  the  law  divides 
the  day  where  equity  requires  it,"^  it  cannot  but  divide  it 
to  prevent  loss  to  one  who  loans  money  or  parts  with  any- 
thing valuable,  when  the  inducement  for  his  action  is  the 
security  given  him  upon  the  then  unincumbered  real  estate 
of  the  borrower.  In  fact  the  equity  of  a  mortgagee  to  the 
extent  of  his  claim  is  not  necessarily  nor  ordinarily  inferior 
to  the  equity  of  a  purchaser;  and  nothing  but  our  regard 
for  precedents,  supported  neither  by  justice  nor  by  reason, 
can  induce  us  to  extend  any  protection  to  the  latter  which 
we  would  withhold  from  the  former. 

1  Small's  Appeal,  24  Penn.  C  398; 


Ladly  v.  Creighton,  70  Pa.  St.  490. 

2Murfee  v.  Carmack,  4  Yerg.  270; 
Berry  v.  Clements,  9  Hump.  312. 


2  Mechanic's  Bank  v.  Gorman,  8  \V. 
&  S.  304. 

*  Small's  Appeal,  24  Penn.  S.  398. 

393 


§§371-373  LAW  OF  JUDGMENTS.  [Cliap.  XIV. 

g  371.  Office  Hours.— Notice  ^Yill  not  be  taken  of  tlie 
fraction  of  the  day  preceding  office  hours,  in  determining 
the  rehitive  precedence  of  judgments  among  one  another. 
All  records  taken  to  the  clerk's  office  before  office  hours, 
will  be  regarded  as  if  filed  at  the  time  provided  by  law  for 
opening  that  office.* 

g  372.  Judgment  on  Day  of  Sale.— If  lands  are  sold  un- 
der a  judgment,  another  judgment  entered  on  the  same  day, 
but  previously  to  the  sale,  is  nevertheless,  according  to  the 
construction  of  the  law  adopted  in  Pennsylvania,  a  lien  on 
the  land,  and  as  such,  entitles  its  holder  to  the  residue~of 
the  proceeds  of  the  sale  to  the  extent  of  its  amount,  after  all 
senior  liens,  if  any,  are  satisfied. » 

g  373.  Conveyance  or  Incumbrance  of  Land,  simulta- 
neously "vyith  its  Acquisition. — No  doubt  one  against  whom 
a  judgment  has  already  been  docketed,  may  purchase  land, 
and  at  the  same  time  he  receives  his  conveyance,  may  give, 
to  secure  any  portion  of  the  i^urchase  money,  a  mortgage, 
which  will  take  precedence  over  the  judgment  as  a  lien  on 
the  lands  purchased,  s  If  an  absolute  deed  be  made,  and 
intended  as  a  mortgage,  and  afterwards  a  judgment  be 
docketed  against  the  grantor  in  such  deed,  and  the  grantee 
then  reconvey,  at  the  same  time  taking  a  mortgage  as  secu- 
rity for  his  debt  in  lieu  of  the  deed,  this  mortgage  will  take 
precedence  over  the  judgment  lien.'^  The  reason  assigned 
for  this,  is  that  the  conveyance  and  incumbrance  of  the  land 
being  simultaneous,  no  opportunity  is  given  for  the  judg- 
ment lien  to  attach.  But  it  has  also  been  decided  that  if, 
upon  acquiring  land,  the  judgment  debtor  immediately  exe- 
cutes a  mortgage,  not  for  purchase  money,  the  lien  of  the 
mortgage  will  be  subordinate  to  that  of  the  judgment. "  If 
this  decision  be  correct,  the  simultaneous  execution  of  the 
conveyance  and  of  the  mortgage  has  no  power  to  prevent 
the  attaching  of  the  judgment  lieu,  and  we  must  look  for 
some  other  reason  upon  which  to  justify  the  decisions  giv- 


1  Warden  v.  Mason,  10  Wend.  575. 

2  Small's  Appeal,  24  Penn.  S.  398. 

s  Curtis  V.  Hoot,  20  111.  53;  Cake's 
Appeal,  23  Pcnn.  S.  186. 

394 


4Cliristio  V.  Hale,  4G  111.  117. 
5  Hoot  V.  Curtis,  3S  111.  192. 


Chap.  XIV.]     PRIORITY  ACQUIRED  BY  DILIGENCE.       §^373-374 

ing  precedence  to  mortgages  for  purchase  money,  than  that 
of  simultaneousness.     This  reason  is  readily  found  when  wo 
remember  that  it  is  a  universally  recognized  principle  of  law 
that  no  judgment  lien  can  be  a  charge  upon  any  greater  in- 
terest than  the  defendant  owns.     A  purchaser  who  has  paid 
only  a  portion  of  the  sum  contracted  to  be  paid,  has  no  title 
which  is  not  liable  to  be  subjected  to  the  lien  of  the  vendor 
for  unpaid  purchase  money.      A  judgment  against  such  a 
vendee  must,  therefore,  be  subordinate  as  a  lien  to  that  held 
by  the  vendor ;  and  for  this  purpose,  it  is  perfectly  imma- 
terial whether  the  claim  is  put  in  the  shape  of  a  vendor's 
lien,  or  of  a  mortgage  to  secure  the  payment  of  purchase 
money.     As  a  confirmation  of  the  theory  that  it  is  not  the 
simultaneous  nature  of  the  incumbrance,  but  the  fact  that 
it  represents  an  interest  in  the  land,  never  in  fact  owned  by 
the  incumbrancer,  which  gives  it  precedence  over  judgment 
liens  of  anterior  date,  we  cite  a  case  decided  in  Pennsylva- 
nia.    A  conveyance  of  lands  was  made  and  delivered  to  the 
grantee  sixteen  miles  from  the  county  seat,  where  the  rec- 
ords Avere  kept.     This  transaction  was  completed  on  Satur- 
day evening.     At  the  same  time,  the  grantor  took  judgment 
bonds  to  secure  payment  of  the  balance  due  upon  the  pur- 
chase money.     He  had  judgment  entered  upon  these  bonds 
on  the  following  Monday.      This  judgment  was  afterward 
given  precedence  as  a  lien  on  the  land  purchased,   over 
judgments  previously  docketed,  because  it  was  thought  to 
be  unreasonable  to  require  judgment  to  be  entered  on  Satur- 
day night,  or  on  Sunday.^     Now  in  this  case  abundant  time 
was  given  for  the  judgment  lien  to  attach  if  it  were  possible 
for  it  to  attach,  so  as  to  outrank  any  vendor's  lien,  of  which 
reasonable  notice  was  given. 

g  374.  Priority  acquired  by  Diligence. — If  two  or  more 
judgments,  on  account  of  their  contemporaneous  rendition 
or  docketing,  or  from  any  other  cause,  are  equally  entitled 
to  precedence  as  liens  on  the  real  estate  of  the  judgment 
debtor,  this  equality  may  be  destroyed,  in  order  to  give 
precedence  to  the  lien  holder  who  first  attempts  to  subject 
any  specific  real  estate  to  the  payment  of  his  lien.     "The 

1  Jacob's  Appeal,  23  Penn.  S.  477. 

395 


§§374-375  •    LAW  OF  judgments.  [Chap.  XIV. 

law  favors  diligent  creditors ;"  and  tlie  courts  seem  to  be 
unanimous,  where  liens  are  otherwise  equal,  in  according 
to  him  who  first  takes  property  in  execution,  the  right  to 
be  first  satisfied  out  of  its  proceeds.  ^  Where  different 
judgment  creditors  pursue  different  remedies,  each  is  con- 
sidered as  having  elected  to  follow  the  remedy  with  which 
he  commences,  and  therefore  is  treated  as  entitling  himself 
to  precedence  in  regard  to  that  remedy  and  as  forfeiting  his 
claim  to  precedence  in  any  of  the  other  remedies  pursued 
by  his  co-creditors.  Judgments  were  severally  on  the  same 
day  entered  in  favor  of  P.,  S.  and  R.  Pt.  took  the  defend- 
ant on  ca.  sa.  P.  and  S.  each  took  out  Jl.  fas.  on  the  same 
day  and  levied  on  the  defendant's  lands.  Afterwards,  the 
defendant  was  released  from  imprisonment  by  operation  of 
laws  provided  for  the  relief  of  insolvents.  E.  then  took  out 
Ji.  fas,  and  levied  on  the  lands  already  levied  upon  by 
P.  and  S.  "Writs  of  vend.  exp.  being  subsequently  issued 
on  all  of  the  judgments,  the  land  was  sold  by  the  marshal, 
producing  a  sum  insufficient  to  x^ay  the  several  liens  of  E., 
S.  and  P.,  whereupon  it  became  necessary  to  determine  the 
relative  claims  of  E.,  S.  and  P.  upon  the  proceeds  of  the  sale. 
In  pronouncing  the  opinion  of  the  court,  it  was  stated  that,  by 
the  common  law,  he  who,  where  the  liens  of  severed  judg- 
ments were  equal,  first  extended  the  land  of  the  defendant 
by  elegit,  thereby  became  entitled  to  be  first  satisfied  out  of 
it;  and  that,  in  case  one  judgment  creditor  took  out  an 
elegit,  another  took  the  body  of  the  defendant  on  a  ca.  sa., 
and  the  third  took/,  fas.  on  goods  and  chattels,  each  Avould 
thereby  elect  his  remedy  and  entitle  himself  to  priority 
therein.  Applying  these  common  law  rules  to  the  case 
under  consideration,  the  court  applied  the  proceeds  of  the 
marshal's  sale  to  the  satisfaction  of  the  claims  of  P.  and  S.^ 

§  375.     Priority   acquired  by   Superior  Equity.— Two 

judgments  were  entered  on  the  same  day,  and  were,  there- 
fore, equal,  in  point  of  time.  By  one,  A.  recovered  against 
B.  and  C.  ;  by  the  other,  B.  recovered  against  C.     It  was 


1  Cook  V.  Dillon,  9  Iowa,  407;  Wa- 
terman V.  Hasldn,  11  Johns.  228; 
Adams  v.  Dyer,  8  Jolms,  347;  Bruce 

39G 


V.  Vogel,   38    Mo.    100;    Burney  v. 
Blodgctt,  1  IIow.  Miss.  39. 

2  Rockbill  V.  Hanna,  15  How.  U.  S. 
189. 


Chap.  XIV.]    PREFEREED   UNITED   STATES  DEBTS.        §p75-378 

held  that  the  equity  of  A.  to  be  paid  out  of  C.'s  land,  was 
superior  to  that  of  B. ;  and  he  was  therefore  awarded  the 
entire  proceeds  of  a  sale  of  C.'s  real  estate.^  ^ 

§  376.  On  Writ  of  Error  Bond. — A  statute  of  Texas  en- 
acted that  a  writ  of  error  bond  shall  liave  the  force  and 
effect  of  a  judgment,  upon  which  execution  may  issue  in 
case  of  forfeiture.  The  forfeiture  takes  place  on  the  affirm- 
ance of  the  judgment  by  the  appellate  court.  The  lien  of  the 
statutory  judgment  binds  all  lands  owned  by  the  sureties  at 
or  subsequent  to  the  execution  of  the  bond,  though  alien- 
ated before  the  judgment  of  affirmance  is  pronounced.^ 

§  377.  Sales  under  Junior  Judgments. — The  sale  of 
lands  under  execution  in  no  wise  affects  the  lien  of  a  prior 
judgment,  nor  does  it  necessitate  any  change  in  the  pro- 
ceedings required  to  make  such  lien  effectual.^  The  holder 
of  the  elder  lien  may,  at  any  time,  during  the  life  of  his 
lien,  sell  the  land  previously  sold  under  a  junior  judgment. 
Upon  the  expiration  of  the  statutory  period  of  redemption, 
he  may  take  out  his  deed  and  thereby  obtain  title  para- 
mount to,  and  free  from,  all  sales  and  claims  based  upon 
junior  liens. ^  If  the  same  plaintiff  have  two  judgment  liens 
on  the  same  land,  he  may  sell  under  the  junior,  without  re- 
leasing or  otherwise  affecting  the  senior,  unless  it  can  be 
shown  that  he  was  guilty  of  some  fraud  upon  the  purchaser 
as  by  misleading  him  in  relation  to  the  existence  of  the 
senior  judgment.^  The  sale  of  lands  under  a  junior  judg- 
ment passes  title  subject  to  all  prior  liens.  The  money 
produced  by  such  sale,  therefore,  cannot  be  applied  to  the 
satisfaction  of  such  liens;  but  must,  to  the  extent  of  his 
debt,  be  given  to  the  creditor  under  whose  judgment  it  was 
realized.^ 

§  378.  Preferred  Debts  of  United  States.— The  fifth  sec- 
tion of  the  Act  of  March  3,  1797,  provided:  "That  when  any 


1  Vierheller's  AjDpeal,  24  Penn.  S. 
106. 

2  Berry  v.  ShuUer,  25  Tex.  Supp.  p. 
140. 

3  Lathrop  v.  Brown,  23  Iowa,  40. 


*  Kankin  v.  Scott,   12  Wheat.   177; 
Littlefield  r.  Nichols,  42  Cal.  372. 

5  Shotwell  V.  Murray,  1  Johns.  Ch, 
512. 

6  Bruce  v.  Vogle,  38  Mo.  100. 

397 


§§378-379  LAW  OF  judgments.  [Chap.  XIY. 

revenue  officer,  or  other  person,  hereafter  becoming  indebted 
to  the  United  States,  shall  become  insolvent,  or  where  tbe  es- 
tate of  any  deceased  debtor  in  the  hands  of  his  executor  or 
administrator  shall  be  insufficient  to  pay  all  his  debts,  the 
debt  due  to  the  United  States  shall  be  paid  first."  The 
priority  here  created  does  not  yield  to  any  class  of  creditors; 
therefore,  in  the  distribution  of  assets,  the  claim  of  the 
United  States  has  the  precedence  over  judgment  liens  held 
by  individuals.* 

PAET  IV. -OF  THE  SUSPENSION  AND  DISCHAEGE  OF  JUDGMENT 

LIENS. 

§  379.  Suspension  by  Ca.  Sa. — A  judgment  may, 
through  various  circumstances,  seem  to  be  no  longer  of  any 
force  or  effect;  and  may  afterwards,  by  virtue  of  some 
judicial  proceeding,  or  by  the  happening  of  some  unex- 
pected event,  be  restored  to  its  former  condition.  From 
its  inseparable  connection  with  the  judgment,  the  lien  may 
seem  first  to  lose  and  then  to  regain  its  vitality.  The 
restoration  of  the  judgment  and  of  its  lien,  is  always  sub- 
ject to  the  rights  acquired  during  their  temporary  suspen- 
sion. The  taking  of  the  defendant  in  execution  has  always, 
at  common  law,  been  recognized  as  an  extinguishment  of 
the  judgment,  subject  to  the  contingency  of  a  revivor  by 
virtue  of  his  death  in  prison,  or  his  escape  therefrom  with- 
out the  plaintiff's  consent.  But  while  the  happening  of  this 
contingency  may  restore  to  plaintiff  the  right  to  enforce  his 
judgment  by  action  or  by  appropriate  process,  it  does  not 
prejudice  interests  acquired  by  third  persons  while  the 
debtor  was  in  custody.  "The  arrest  waives  and  extin- 
guishes all  other  remedies  on  the  goods  or  lands  of  the 
debtor  while  the  imprisonment  continues,  and  if  the  debtor 
be  discharged  by  the  consent  of  the  creditor,  the  judgment 
is  forever  extinguished,  and  the  plaintiff  remitted  to  such 
contracts  or  securities  as  he  has  taken  as  the  price  of  the 
discharge.  But  if  the  plaintiff  be  remitted  to  other  reme- 
dies by  a  discharge  of  his  debtor  by  act  of  law,  or  by  an 
escape,  it  will  not  operate  to  restore  his  lien  on  the  debtor's 

1  U.  S.  V.  Duncan,  12  III.  523;  Conrad  v.  Insurance  Co.,  1  Pet.  444. 
393 


Chap.  XIV.]  SUSPENSION  by  forthcoming  bond.    ^p79-S80 

property,  which  he  has  neglected  to  waive  or  abandon  as 
against  creditors  who  have  obtained  a  precedence  during 
such  suspension.  The  case  of  Sneed  v.  McCoul  (12  How. 
407),  in  this  court,  fully  confirms  this  doctrine.  It  is  to  be 
found  in  the  common  law  as  early  as  the  Year  Books,  and 
is  admitted  to  be  the  law  in  almost  every  State  in  the  Union. 
(See  Year  Book,  33  Henry  VI.,  p.  48;  Foster  v.  Jackson, 
Hobart,  52;  Barnabi/s  Case,  1  Strange,  653;  Vigers  v.  Aldrich, 
4  Barr,  2483;  Jacques  v.  WiiJuj,  1  T.  R.  557  ;  Taijlor  v.  Wa- 
ters, 5  Maule  &  Selwyn;  Fx  parte  Knoiuell,  13  Vesey  jun. 
193.  And  in  New  York,  Cooper  v.  Bigelow,  1  Cow. ;  Hansom 
V.  Keyes,  9  Cow.  128.  In  Pennsylvania,  Sharp  v.  Spechengle, 
3  Serg.  &  R.  In  Massachusetts,  Little  v.  The  Bank,  14 
Mass.  443.)"! 

§  380.  Suspension  by  Forthcoming  Bond. — A  forth- 
coming bond  has,  in  some  of  the  States,  when  followed  by 
a  statutory  judgment  thereon,  the  effect  of  operating  as  a 
satisfaction  of  the  original  judgment."  But  if  the  securi- 
ties upon  such  bond  prove  insolvent,  it  may,  in  a  court  of 
law,  be  quashed  on  motion  of  the  creditor.  In  that  event 
he  is  remitted  to  his  rights  under  his  judgment.  It  is  said 
that  a  court  of  equity  may,  without  the  formality  of  quash- 
ing the  bond,  treat  it  as  a  nullity,  and  afford  the  creditor 
such  relief  as  he  would  be  entitled  to  if  it  had  not  been 
given.  3  In  a  case  where  it  was  claimed  that  the  quashing 
of  the  bond  and  the  vacation' of  the  new  or  statutory  judg- 
ment, restored  the  plaintiff  to  the  benefit  of  his  lien  as  it 
stood  when  the  bond  was  given,  the  claim  loas  denied  in  the 
following  language:  "We  do  not  assent  to  this  view  of  the 
effect  of  the  order  vacating  the  new  judgment,  so  far,  at 
least,  as  respects  the  liens  or  rights  of  third  x^arties,  which 
have  legally  attached  in  the  meantime  to  the  goods  of  the 
defendant,  discharged  from  the  original  judgment  by  the 
giving  of  the  forthcoming  bond.  After  the  lien  was  sus- 
pended or  discharged,  the  original  judgment  being  in  con- 
templation of  law,  satisfied   by  the  new  and  substituted 


1  Eockhill  V.  Hanna,  15  How.  169; 
Jackson  v.  Benedict,  13  Johns.  533; 
Gribwold  u.  Hill,  2  Paine  C.  C.  492. 


2  Bank  of  U.  S.  v.  Patton,  5  How- 
Miss.  200. 

3  Jones  V.  Myrick's  Ex'r,  8  Gratt. 
179. 

899 


80-382  LAW  OF  JUDGMENTS.  [Cliap.  XrV. 


security,  the  debtor  was  at  liberty  to  deal  with  the  property 
as  his  own,  and  it  remained  in  his  possession,  subject  to 
any  charge  or  lien  impressed  upon  it  cither  by  act  of  the 
party,  or  by  operation  of  law,  the  same  after  the  forthcom- 
ing bond  as  before  the  entry  of  the  original  judgment. 
Possibly,  as  between  the  parties,  the  judgment  revived,  but 
it  would  be  against  principle,  and  work  manifest  injustice, 
to  give  to  it  this  retrospective  operation,  so  as  to  extinguish 
the  intermediately  acquired  rights  of  third  persons.  We. 
deny  to  it  this  effect.  It  would  be  otherwise  if  the  forth- 
coming bond  had  been  'shown  to  be  void,  as  it  might  then 
be  treated  as  a  nullity,  and  as  affording  no  foundation  for 
the  statutory  judgment  consequent  upon  the  forfeiture."^ 

§  381.  Vacation  and  Restoration  of  Judgment. — The 
vacation  of  judgment  by  order  of  the  court,  like  its  es- 
tinguishmeut  by  the  operation  of  a  forthcoming  bond, 
leaves  the  judgment  debtor  at  liberty  to  dispose  of  and  en- 
cumber his  real  estate  as  if  the  judgment  had  never  been 
rendered.  Upon  a  reversal  of  the  order  of  vacation,  the  judg- 
ment creditor  is  restored  to  all  his  rights,  except  so  far  only 
that  his  restoration  can  not  prejudice  persons  not  parties  to 
the  suit,  in  relation  to  any  interest  they  have  acquired 
during  the  vacation.  But  liens  existing  in  subordination  to 
that  of  the  judgment  at  the  date  of  its  vacation,  will  occupy 
a  like  subordinate  position  after  its  restoration.  "When 
the  order  vacating  a  judgment  is  set  aside,  the  lien  is  re- 
vived in  all  its  pristine  vigor,  and  is  as  effective  as  before 
the  order  was  made,  except  as  to  rights  acquired  in  the 
meantime.  - 

§  382.  Appeal,  with  Stay  of  Execution. — The  stay  of 
execution  consequent  upon  filing  a  sufiicient  bond  for  that 
purpose,  pending  an  appeal,  nefther  discharges  nor  sus- 
pends the  lien;  it  merely  suspends,  during  the  pending  of 
the  appeal,  the  right  of  the  judgment  creditor  to  realize 
the  benefit  of  his  lion  by  a  sale  of   the   defendant's  real 


'  Brown  r.  Clark,  4  How.  U,  S.  13, 
14. 

400 


2  King   V.    Harris,    34  N.  Y.    330, 
a£arminn;  30  Barb.  471. 


Chap.  XIV.]  DORMANT  EXECUTION.  §2382-383 

estate.  1  In  Georgia,  a  different  rule  prevails.  By  statute 
a  judgment  so  appealed  from  loses  its  lien,  except  for  the 
single  purpose  of  preventing  alienations.  If,  of  two  judg- 
ments, equal  as  liens,  one  is  appealed  from,  it  loses  its  place 
as  a  lien.  If,  in  the  higher  court,  judgment  be  entered  in 
favor  of  the  appellant,  it  does  not  relate  back,  but  operates 
as  a  lieu  only  from  the  time  of  its  entry  in  the  Appellate 
Court. "  A  similar  effect  seems  to  have  been  produced  by 
an  appeal,  in  Pennsylvania,  from  an  award  obtained  under 
a  compulsory  arbitration  act,  which  declares  that  such  an 
award  "shall  have  the  effect  of  a  judgment  against  the 
party  against  whom  it  is  made,  and  be  a  lien  on  his  real 
estate  until  such  judgment  be  reversed  on  appeal."  The 
creditor  appealed,  and'  thereby  secured  a  judgment  more 
favorable  to  himself;  but  it  was  held  that  he  could  not  claim 
under  both  judgments,  and  could  not  have  a  lien  by  virtue 
of  either.  That  a  purchaser,  after  the  award  and  before  the 
judgment,  took  title  free  from  the  award  because  it  was 
superseded,  and  free  from  the  judgment  because  it  did  not 
exist.  ^ 

§  383.  Dormant  Execution.— "Questions  in  regard  to 
dormant  executions,  generally,  and  I  believe,  invariably, 
arise  between  conflicting  claimants  of  j^^'^'sonal  property. 
The  doctrine  on  this  subject  does  not  apply  to  real  estate, 
the  lien  upon  which  depends  upon  the  docketing  of  the 
judgment  and  not  upon  the  execution  or  levy. "  The  lien  of 
the  judgment,  as  to  real  estate,  never  becomes  dormant 
until  it  expires  by  the  limitation  imposed  by  statute.^  The 
plaintiff  has  a  right  to  enforce  his  lien  during  any  part  of 
the  time  provided  by  law.  Therefore  he  may,  if  he  sees 
proper,  agree  with  the  defendant  not  to  take  out  execution 
during  any  specified  period,  without  subordinating  his  lien 
to  that  of  junior  judgments.^  But  if  he  causes  an  execu- 
tion to  be  taken  out  and  levied  upon  personal  property, 
thereby  producing  a  conditional   satisfaction  of  his  own 


*  Muir  V.  Leitch,  7  Barb.  341. 
5  Love  I'.  Harper,  4  Humph_113; 
Muir  V.  Leitch,  7  Barb.  34L 


Low  V.  Adams,  6  Cal.  277;  Curtis 
t'.  Root,  28  111.  3G7. 

sSuelling  v.  Parker,  8  Geo.  122. 

^Lentz  V.  Lamplugla,  12  Penn.  S. 
344. 

(26)  401 


g§  383-385  LA\v  OF  judgments.  [Cliai-).  XIV. 

judgment,  and  depriving  other  judgment  creditors  of  the 
benefit  of  a  levy  on  the  same  personality,  he  cannot  with- 
draw his  levy  and  insist  on  the  operation  of  his  judgment 
as  a  lieu  on  real  estate  to  the  prejudice  of  third  parties,  i 

§  334.     Discharge  by  Act  of  Defendant.— Payment  is 
the  only  act  by  which  the  defendant  can  discharge  or  avoid 
the  lien  of  a  judgment.  -     It  is  the  duty  of  a  sheriff  having 
an  execution,  to  receive  payment  of  the  judgment,  if  a  ten- 
der of  the  amount  due  be  made  to  him.     But  such  tender 
neither  discharges  the  judgment  nor  removes  its  lien.     If 
the  tender  be  refused,  the  remedy  available  for  the  debtor 
is,  to  apply  to  the  court  on  motion  to  restrain  the  sale  and 
to  enter  satisfaction  of  the  judgment.     If   no   attempt  is 
made  to  obtain  such  redress  in  court,  the  party  making  the 
tender  cannot  treat  the  judgment  as  satisfied.     "The  doc- 
trine of  tender  is  not  applicable,  for  that  cannot  be  made 
after  an  action  is  commenced;  and,  in  cases  where  a  tender 
is  made  in  season,  and  the  creditor  refuses,  the  effect  is 
merely  to  discharge  the  debtor  from  subsequent  interest. 
The  principal  is  never  discharged,  unless  under  peculiar 
circumstances,  as  where  there  was  not,  after  the  tender  and 
refusal,  any  remedy  to  enforce  the  payment  of  the  debt,  or 
the  performance  of  his  duty.     The  debt   still  remains  due 
and  the  judgment  in  force. '" 

I  385.  New  County. — A  lion  which  has  once  attached 
must  remain  until  it  is  discharged  by  act  of  the  parties, 
removed  by  subsequent  legislation,  or  expired  by  statutory 
limitation.  Therefore,  the  erection  of  a  new  county,  sub- 
sequently to  the  docketing  of  the  judgment,  including  in  its 
limits  the  lands  of  the  debtor,  does  not  release  or  otherwise 
affect  the  lien.* 

§  386.  By  Non-Claim.— In  Pennsylvania,  a  long  series 
of  decisions  established  the  rule,  that  a  sale  made  by  an 
officer  under  an   execution  divests  all   liens  of   a   definite 


1  Lyon  V.  Hampton,   20  Penu.   S. 
4G. 

2  Tinncj-  v.  Wolston,  41  III.  210. 

3  Juclzson  V.  Law,   5  Cow.  248,  af- 

402 


firmed  on  api^eal  iu  Law  v.  Jackson, 
0  Cow.  Gil. 

*  Davidson  v.  Eoot,   11    Ohio,  98; 
Bowman  v.  Hovious,  17  Cal.  471. 


Chap.  XIV.]        DISCHARGED  BY   SALE  UNDER.  §§380-390 

amount,  and  that  the  lien  creditor,  omitting  to  claim  out  of 
the  proceeds  of  the  sale,  nevertheless  loses  his  right  to  re- 
sort to  the  land.  ^ 

§  387.  Of  Judgments  Discharged  by  Frauds. — If  the 
plaintiff,  through  fraudulent  misrepresentations,  is  induced 
to  release  his  lien  or  to  satisfy  his  judgment,  an  intervening 
purchaser  of  the  property,  who  participated  in  the  fraud, 
will  not  be  protected  from  the  lien  thus  sought  to  be 
avoided.* 

§  388.  Discharge  by  Merger  of  Judgment.— The  merger 
occasioned  by  one  judgment  being  recovered  upon  another, 
as  it  extinguishes  the  judgment  sued  upon,  as  a  cause  of 
action,  also  destroys  its  efifect  as  a  lien. 

g  389.  Cannot  be  Restored. — The  payment  of  a  judg- 
ment in  whole  or  in  part,  releases  the  lien  to  the  extent  of 
the  payment;  and  it  cannot  be  restored  as  a  lien  by  any 
subsequent  agreement  between  the  parties.'  In  Pennsyl- 
vania, it  seems  to  be  competent  for  the  parties  in  interest 
to  prolong  the  lien  by  agreement.  Thus>  A.  recovered 
judgment  against  B.,  April  4,  184G;  B.  afterwards  conveyed 
to  0.  real  estate  liable  to  the  judgment  lien.  D.  then  had 
judgment  against  C,  July  24,  1850.  On  the  twenty-eighth 
day  of  March,  1851,  A.  and  C.  agreed  that  the  first  named 
judgment  should  continue  to  be  a  lien  for  another  term  of 
five  years.  It  was  afterwards  decided  that  A.  and  C.  had 
power  thus  to  prolong  the  lien;  that  B.  was  not  a  necessary 
party  to  the  agreement;  that  the  ierre  tenant  being  the  only 
person  injured  by  the  arrangement,  was  the  only  one  who 
need  join  with  the  plaintiff  therein;  and  that  D.,  being  a 
mere  second  incumbrancer,  could  not  avoid  C.'s  contract 
with  A.^ 

§  390.     Discharged  by  Sale  Under.— A.,  B.  and  C.  had 

judgments  against  D.,  having  priority  as  here  named.     B. 


1  Commrs.  of  Spring  Gardens'  Ap- 
peal, 8  Watts,  444. 

2  White  V.  Jones,  38  111.  159. 

3  Purely  V.  Doyle,  1  Pai.  Ch.  558; 
Denegre  v.  Haun,  13  Iowa,  240. 


*  De  La  Vergne  t'.  Everton.  1  Pai. 
Ch.  181 ;  Troup  v.  Wood,  4  John.  Ch. 
247. 

^  Same's  Appeal,  26  Penn.  S.  184. 

403 


§§390-391  LAW  OF  JUDGMENTS.  [Chap.  XIV. 

levied  upon  and  sold  D.'s  land,  realizing  a  sum  insufficient 
to  pay  bis  judgment.     A  deed  under  this  sale  issued  to  the 
purchaser,  the  time  for  redemption  having  first  expired. 
Meantime,  A.  sold  the  same  land  under  his  judgment.     B., 
during  the  period  allowed  for  redemption  from  A.'s  sale, 
but  subsequently  to  the  expiration  of  the  period  allotted 
for  redemption  from  his  own  sale,  attempted  to  redeem  as  a 
judgment  creditor,  and  paid  money  sufficient  for  that  pur- 
pose, and  C.  thereafter  attempted  in  like  manner  to  redeem 
from  B.     Uppn  these  facts,  the  court  decided,  that  by  the 
sale  under  B.'s  judgment,  which  had  become  absolute  by 
the  issuance  of  the  deed  therefor,  the  lien  of  B.'s  judgment, 
and  of  all  judgments  over  which  it  had  precedence,  was 
exhausted;  and  that  therefore  neither  B.  nor  C.  was  qualified 
to  make  a  valid  redemption.^ 

§  391.  Payment  -without  Discharge. — In  some  cases  of 
which  we  shall  treat  more  fully  in  the  chapter  upon  ' '  Satis- 
faction," payment  of  a  judgment  may  be  made  to  the  plaintiff 
without  producing  the  discharge  thereof.  This  happens,  as 
we  shall  see,  wlien  the  party  making  the  payments,  though 
compelled  to  do  so  for  his  own  protection,  or  to  fulfill  some 
obligation  on  which  he  is  not  primarily  liable,  is  entitled  in 
equity  to  be  invested  with  some  portion  or  with  all  the 
rights  previously  held  by  the  judgment  creditor.  Whenever, 
after  payment,  the  judgment  may  be  kept  alive  for  any  pur- 
pose, its  lien  will  survive  for  a  like  purpose.  Thus  a  party 
purchasing  land  of  a  surety,  subject  to  a  judgment  against 
several  co-sureties,  and  who  is  for  his  own  protection  com- 
pelled to  pay  plaintiff  to  avoid  the  lien,  need  not  thereby 
discharge  the  lien  on  lands  held  by  the  other  defendants. 
It  becomes  the  duty  of  the  creditor,  on  such  payment,  to 
instantly  transfer  to  the  payer,  the  judgment  and  all  its 
securities  for  its  satisfaction.  If  he  refuses  to  do  so,  a  suit 
in  equity  may  be  maintained  to  subject  the  other  lands  to 
the  payment  of  a  ratable  part  of  the  amount  which  the 
purchaser  has  been  compelled  to  pay.^        « 


1  Ex  parte  Stevens,  4  Cow.  133. 
'  Furnold  v.  Bank  of  Mo.,  41  Mo. 
336;  Ex  pcirte  Crish,  1  Atk.  133;  Lath- 

404. 


rop  &  Dale's  Appeal,  1  Penn.  S.  512; 
Lidderdale  v.  Eobinson,  12  Wheat. 
594. 


Cliap.  XIV.]  STAY  or  execution.  gg392-394 

PART  v.— EXTENDING  AND  REVmNG. 

g  392.  Scire  Facias. — The  lien  of  judgments  being  gen- 
erally created  and  limited  by  statutes  prescribing  the  period 
of  its  duration,  is,  for  the  most  f)art,  kept  strictly  within 
the  bounds  thus  assigned  to  it.  The  object  of  a  scire  facias 
is  not  to  extend  or  to  continue  the  lien,  but  to  enable 
plaintiff  to  make  it  available  by  execution.  Therefore,  if 
the  law  provide  that  judgment  liens  shall  continue  for  a 
number  of  years,  but  that  execution  can  issue  "only  within  a 
shorter  period,  it  may  be  necessary  for  the  plaintiff  to  revive 
his  judgment  so  as  to  obtain  execution  after  the  lapse  of 
this  shorter  period  and  before  the  expiration  of  the  lien. 
In  case  he  proceeds  to  revive  his  judgment  by  scire  facias, 
this  will  not  prolong  the  lien  beyond  the  time  prescribed  by 
statute.'  In  Ohio,  a  judgment  may  become  dormant  and 
thereby  lose  its  lien  as  against  a  mortgage  made  b}^  the 
debtor  during  the  life  of  the  lien.  A  revival  of  the  judg- 
ment cannot  affect  the  mortgage  or  any  other  prior  lien.* 

g  393.  Inability  to  Execute  Process. — In  Tennessee, 
the  imqossibility  of  executing  the  process  of  the  courts  dur- 
ing the  late  civil  war,  has  been  urged  as  a  sufficient  reason 
for  extending  the  lien  of  judgments  beyond  the  period  pre- 
scribed by  statute.  This  case  did  not  end,  as  most  hard 
cases  are  said  to  do,  by  making  a  bad  precedent.  The  court 
adhered  to  the  law,  and  declined  to  relieve  the  manifest 
hardship  resulting  therefrom,  by  judicial  legislation.  ^ 

§  394.  Stay  of  Execution. — The  remarks  made  in  the 
preceding  section,  commending  the  decision  in  Tennessee, 
as  an  example  of  adherence  to  law  when  the  temptation  to 
judicial  legislation  was  almost  irresistible,  are  by  no  means 
applicable  to  several  constructions  given  by  the  courts  to  the 
effect  of  stays  of  execution,  made  without  the  consent  of  the 
plaintiff.     In  Pennsylvania,  a  statute  provided  that  no  judg- 


1  Denegi-e  v.  Haun,  13  Iowa,  240; 
Tufts  V.  Tufts,  18  Wend.  G21;  Mower 
V.  Kip,  G  Pai.  Ch.  83;  Whiting  v. 
Beebe,  7  Eng.  577;  Norton  v.  Beaver, 


5  Ohio,  180;  Bank  v.  Wills,   12  Mo. 
364. 

2  Tracy  u.  Tracy,  5  McL.  45G;  Miner 
u.  Wallace,  10  Ohi<?,  403. 

3  Smart  u.  Mason,  2  Ileiskell,  223. 

405 


g394  LAW  OF  JUDGMENTS.  [Chap.  XIV. 

ment  should  continue  to  be  a  lien  on  the  real  estate  of   the 
debtor  during  a  longer  period  than  five  years  from  the  first 
return  day  of  the  term  of  which  such  judgment  might  bo 
entered,  unless  revived  in  the  manner  prescribed  by  law. 
Under  this  it  was  held  that  if  judgment  were  rendered  with 
a  stay  of  execution  the  lien  would  continue  five  years  from 
the  expiration  of  the  stay.^    In  California,  the  statute  regulat- 
ing the  lien  and  docketing  of  judgments  provides:    "that 
the  lien  shall  continue  for  two  years,  unless  the  judgment 
be  previously  satisfied."     At  quite  an  early  day  the  Supreme 
Court  of  the  State,  was  called  upon  to  decide  whether  a  stay 
of  execution  resulting  from  filing  a  sufficient  bond  for  that 
purpose,  extended  the   time  during  which  tlie   lien  could 
continue.     The  statute,  it  will  be  seen,  made  no  exceptions 
whatever.     Notwithstanding  the  protest  of  counsel  against 
judicial  legislation,  and  their  requesting  the  court  to  "not 
forget  that  wise  old  saying  of  one  of  the  English  judges  that 
'hard  cases  are  the  quicksands  of  the  law,'"  it  was  held  that 
the  period  during  which  he  was  tied  up  by  the  stay  was  not 
to  be  counted  against  the  judgment  creditor.     The  reason- 
ing employed  in  the  opinion  of  the  court,  seems,  to  my 
mind,  rather  to  show  that  the  legislators  ought  to  have 
incorporated  some  exception  in  the  statute,  tiud  that  they 
would  have  done  so,  if  their  attention  had  been  attracted  to 
the  propriety  of  so  doing,  than  that  the  language  employed 
by  them  indicated  even  an  intention  to  permit  of  any  excep- 
tions.    The  court  said:  "The  first  reading  of  the  act  would 
seem  to  be  conclusive  in  favor  of  the  appellant,  but  when 
we  come  to  examine  the  legal  solicism  of  allowing  a  party 
by  his  own  motion,  thus  to  defeat  the  remedy  which  the  law 
has  given  the  creditor,  and  to  destroy  the  security  furnished, 
which  must  inevitably  result  if  the  construction  contended 
for  be  sustained,  we  are  necessarily  put  upon  inquiry  as  to 
the  intention  of  the  legislature  and  the  possibility  of  escape 
from  any  such  absurd  consequences. 

' '  The  obvious  intention  was  to  charge  the  estate  of  the 
judgment  debtor,  and  to  give  the  creditor  two  years  to  make 
his  money.  The  statute  intended  that  this  time  should  run 
from  the  date  of   the   judgment,  or  jperiod  at  which  the 

1  Penuock  v.  Hart,  8  S.  &  E.  3G9. 

406 


Chap.  XIV.] 


STAY  OP    EXECUTION. 


J394 


plaintiff  was  iu  a  situation  to  take  out  execution,  and  pur- 
sue iiis  remedy  to  final  satisfaction.  By  the  defendant's 
own  act,  the  force  of  that  judgment  has  been  suspended, 
and  the  lien,  which  is  merely  an  incident,  must  share  a 
like  fate.  It  would  be  absurd  to  say  that  a  lien  attached 
upon  a  judgment,  and  expired  by  its  own  limitation,  while 
the  jadgment  was  still  in  fieri,  and  could  not  be  prosecuted 
to  full  fruition. 

"The  defendant  would  thus  be  able  to  abridge,  if  not 
destroy,  the  lien,  and  in  all  cases  where  a  period  of  more 
than  two  years  intervened  between  the  date  of  the  judg- 
ment in  the  court  below  and  the  final  judgment  in  this 
court,  to  substitute  personal  for  that  security  which  the  law 
gives  the  successful  party."'  This  decision  and  the  one 
cited  from  the  Pennsylvania  reports,  are  of  the  class  Avhich 
Mr.  Sedgwick,  in  his  work,  says  "can  hardly  fail  to  bring 
to  the  lips  of  the  student  the  motto  of  this  volume  :  Great 
is  the  mystery  of  judicial  interpretation. "^  They  certainly 
violate  the  rules  laid  down  by  the  same  author,  and  by  him 
sustained  by  the  citation  of  numerous  cases:  "That  if  that 
intention  is  expressed  in  a  manner  devoid  of  contradiction 
and  ambiguity,  there  is  no  room  for  interpretation  or  con- 
struction, and  the  judiciary  are  not  at  liberty,  on  consid- 
eration of  policy  or  hardship,  to  depart  from  the  words  of 
the  statute  ;  that  they  have  no  right  to  make  exceptions  or 
insert  qualifications,  however  abstract  justice  or  the  justice 
of  the  particular  case  may  require  it."  ^  The  reasoning  ad- 
vanced by  Chief  Justice  Murray,  in  the  opinion  from  which 
we  have  quoted  above,  iu  the  case  of  Dewey  v.  Latson,  is 
equally  applicable  to  all  cases  in  which  the  plaintiff  has 
been  prevented  by  the  act  of  the  court,  or  of  the  defendant 
from  prosecuting  his  judgment  "to  full  fruition."  This 
might  as  well  happen  where  a  stay  of  execution  is  produced 
by  an  injunction,  as  by  a  bond  on  appeal.  The  equities 
of  the  two  cases  are  equal.  But  so  far  as  we  are  informed, 
the  exception  has  not  been  expressly  affirmed  or  denied, 
in  any  other  cases  than  those  arising  from  a  stay  of  execu- 


^Dewey  V.  Latson,  6  Cal.  130;  Af- 
ffirmcd  in  Engluud  o.  Lews,  25  Cal. 
337. 


2  Sedgwick  on  Gtat.  and  Const.Law, 
p.  305. 

2  Id.,  p.  295. 


407 


§^393-395  LAW  OP  judgments.  [Chap.  XIV. 

tion  accompanying  tlio  rendition  of  the  judgment,  or  occa- 
sioned by  a  bond  on  appeal.  If  the  undertaking  on  appeal 
be  insufficient  in  amount  to  stay  proceedings,  the  lien  of 
the  judgment  will  not  be  prolonged  thereby.  ^  Neither  can 
the  lien  be  extended  by  an  agreement  betAveen  the  parties 
to  stay  execution,  nor  by  any  stay  not  entered  of  record, 
that  being  the  only  place  at  which  all  purchasers  are 
bound  to  look.-  A  statute  of  Ohio  limited  the  lien  of 
judgments  to  one  year  after  their  rendition,  and  provided 
that  in  case  the  judgment  was  against  a  principal  and 
surety,  the  plaintiff  should  be  restrained  from  proceeding 
against  the  latter  until  the  property  of  the  former  was  ex- 
hausted. Under  this  statute,  it  was  decided  that,  though  the 
execution  against  the  surety  was  delayed  by  order  of  the 
court,  the  plaintiff  lost  his  lien,  at  the  expiration  of  the 
year.  ^ 

§  394.  Sale  after  Expiration  of  Lien. — The  time  during 
which  judgments  have  the  force  of  liens  on  the  lands  of 
judgment  debtors  is  usually  prescribed  by  statutes.  In 
many  instances,  executions  have  been  taken  out  and  levies 
made  within  the  time  prescribed  for  the  continuance  of  the 
lien,  but  so  late  that  the  sale  did  not  take  place  until  after 
the  lapse  of  such  time.  In  regard  to  such  cases,  so  far  as 
our  observation  has  extended,  it  has  been  uniformly  held 
that  the  execution  and  levy  did  not  continue  the  lien;  and 
that  to  preserve  the  priority  acquired  by  the  judgment,  the 
sale  must  be  made  during  the  statutory  f)eriod.  The  title 
acquired  at  such  a  sale  is  therefore  precisely  the  same  as 
though  the  judgment  had  never  been  regarded  as  a  lien.* 

g  395.     Equity  will  not  Extend  nor  Limit. — One  who 

has  neglected  to  enforce  his  judgment  lien  in  proper  time, 
will  not,  in  equity,  bo  relieved  from  the  consequences  of  his 


1  Chapin  v.  Broder,  16  Cal,  403. 

sBombay  u.Boyer,  14  S.  &  R.  253. 

3  Earnfit  v.  Winans,  3  Ham.  135. 

4Bagloy  V.  Ward,  37  Cal.  121;  Isaac 
V.  Swift,  10  Cal.  81;  Koe  v.  Swart,  5 
Cow.  204;  Little  v.  Harvey,  9  Wend. 
158;  Tufts  1'.  Tufts,  18  Wend.  G21; 
Graff  u.  Kipp,  1  Edw.  Ch.  619;  Pettit 

408 


V.  Shepherd,  5  }*ai.  493;  Rupert  v. 
Dantzler,  12  S.  &  M.  G97;  Beirne  v. 
Mower,  13  S.  &  M.  427;  Davis  v.  Ehr- 
man,  20  Penn.  S.  253;  Birdwell  v. 
Cain,  1  Cold.  332;  Diclcenson's  Lessee 
V.  Collins,  1  Swan,  510;  Shephard  v. 
Bailleul,  3  Tex.  23;  Trapnall  v.  Fiich- 
ardiion,  8  Eng.  543. 


Chap.  XIV.]  TRANSCRIPT  FROM  ANOTHER  COUNTY.     §^395-396 

neglect.'  In  general,  courts  of  equity  will  not  interpose  to 
take  away  any  advantage  w^liicli  a  creditor  lias  obtained  by 
his  diligence  in  securing  a  judgment  lien  on  the  debtor's 
estate.  Thus,  w^hen  a  judgment  lien  has  become  a  charge 
on  the  individual  real  estate  of  a  partner  for  a  firm  debt, 
equity  will  not  displace  it  in  favor  of  a  junior  judgment 
against  the  same  partner  for  his  personal  debt.  In  this 
case,  courts  of  equity  in  the  administration  of  assets,  were 
it  not  for  the  judgment  lien,  would  have  given  the  creditors 
of  the  individual  preference  over  the  creditors  of  the  part- 
nership; or,  in  other  words,  they  would  have  distributed 
partnership  effects  to  the  creditors  of  the  partnership,  and 
the  personal  effects  of  each  partner  to  his  personal  cred- 
itors. But  those  courts  "never  interfere  where  the  law  has 
given  one  class  of  creditors  an  absolute  preference  over  the 
others;  but  recognize  and  enforce  all  antecedent  liens, 
claims  and  charges  existing  on  the  property  according  to 
their  priorities."^  But  these  rules  in  nowise  impair  the 
authority  of  courts  of  equity  to  prevent  judgment  creditors 
from  retaining  an  advantage  which  they  secured  through 
misrepresentation  or  some  other  unconscientious  and  in- 
equitable device.  Thus,  if  land  be  conveyed  to  trustees 
for  the  benefit  of  creditors,  being  at  the  time  subject  to 
judgment  liens,  and  the  trustees  proceed  to  sell  the  land, 
the  purchasers  may  have  the  creditors  enjoined  from  pro- 
ceeding to  enforce  their  liens,  if  they  can  clearly  establish 
that  they  were  led  by  the  creditors  to  believe  that  they 
would  look  to  the  trustees  for  their  claims.  In  the  absence 
of  a  clear  affirmative  showing  that  the  creditors  made  such 
representations,  they  will  be  allowed  the  full  advantage  of 
their  liens.  ^ 

§  396.  Transcript  from  Another  County. — By  the  tu'o 
hundred  and  seventh  section  of  the  California  Practice  Act, 
now  adopted  as  the  six  hundred  and  seventy -fourth  section 
of  the  Code  of  Civil  Procedure  of  the  same  State,  the  filing 
of  a  certified  copy  of  a  judgment  from  a  court  of  another 


1  Smith  V.  Meredith,  30   Md.  429; 
Douglas  V.  Herston,  6  Ohio,  162. 


2Meech   v.   Allen,    17  K  Y. 

Cummiug's  Appeal,  25  Penn.  S. 

3  Doub  V,  Mason,  2  MJ.  380. 

409 


300; 
2G8. 


§g39G-338  LAW  OF  judgments.  [Chap.  XIV. 

couutj  with  the  County  Recorder,  gives  the  judgment  force 
as  a  lien  in  the  county  where  filed,  for  two  years  from  the 
filing,  though  its  lien  may  have  expired  in  the  county  in 
which  the  judgment  was  rendered.' 


PAET  VI. 

§  397.  For  Advances  to  be  Made. — A  judgment  may  be 
taken  as  an  indemnity  against  contingent  liabilities  or  to 
secure  future  advances.  An  indorser  may  take  judgment 
to  indemnify  himself  from  the  consequences  which  may 
flow  from  his  indorsement,  and  may  assign  the  same  to 
another  person,  who  becomes  security  in  his  stead.  This 
judgment  will,  in  favor  of  the  substituted  security,  have 
precedence  over  a  junior  judgment  docketed  before  he  was 
compelled  to  pay  the  indorsed  notes.  ^  A  recording  act,  in 
substancj  declaring  that  every  conveyance  not  recorded 
shall  be  void  against  any  subsequent  purchaser  in  good 
faith,  etc.,  makes  the  records  notice  to  subsequent,  but  not 
to  prior,  purchasers  or  incumbrances.  Therefore,  if  a 
judgment  be  confessed,  to  secure  future  advances,  and  a 
mortgage  be  subsequently  made  and  recorded  on  the  judg- 
ment debtor's  real  estate,  the  judgment  creditor  is  not 
affected  thereby,  unless  charged  with  actual  notice,  but  may 
proceed  to  complete  his  advances.  If  the  mortgagee  wish 
to  avoid  the  judgments  standing  as  security  for  further  ad- 
vances, he  should  give  the  judgment  creditor  actual  notice 
of  the  mortgage.* 


PART  VII.— JUDGMENTS  OF  FORECLOSURE. 

§  398.  Merger  of  Lien. — The  cases  determining  the  effect 
of  a  judgment  of  foreclosure  of  a  mortgage,  as  a  merger  or 
extinguishment  of  the  mortgage  lien,  though  few  in  number, 
are  irreconcilable  in  spirit.  In  New  York,  a  mortgage  was 
foreclosed,  but  the  decree  not  docketed.  On  this  state  of 
facts,  the  Supreme  Court  held,  that  "this  mortgage  was 
merged  in  the  decree  entered  upon  it,  which  decree  was 

1  Douner  ?;.  Palmer,  23  Cal.  40.         J      '  Truscott  v.  King,  G  Barb.  346.. 

2  Norton  v.  Whiting,  1  Pai.  Ch.  578. 

410 


Cliap.  XIV.]       DECREE  INCLUDING  M0ETGAGE3.  §§398-399 

enrolled,  but  not  docketed.  The  lien  of  the  mortgage  was 
thus  extinguished  and  gone.  That  a  judgment  at  law  ex- 
tinguishes the  debt  upon  which  it  is  obtained,  is  too  plain 
n  proposition  to  require  argument,  or  authority,  to  prove. 
And  I  am  not  able  to  see  why  a  decree  of  a  court  of  equity 
should  not  have  the  same  effect.  Indeed,  it  seems  to  me 
that  the  rule  applies  equally  in  both  cases.  The  decree 
was  not  a  lien,  because  it  was  not  docketed." '  This  part  of 
the  decision,  though  not  essential  to  the  determination  of 
the  case,  and  though,  so  far  as  we  know,  not  directly 
affirmed  in  the  same  or  any  other  court,  seems  to  have  been 
recognized  as  correct  by  the  Court  of  Appeals  of  the  same 
State."  In  Missouri,  a  judgment  lien  continues  for  but 
three  years,  while  the  lien  of  a  mortgage  does  not  expire 
until  twenty  years.  .  The  Supreme  Court  of  that  State  con- 
sidered that  a  judgment  on  a  mortgage  debt  secured  by 
mortgage,  though  rendered  more  than  three  years,  did  not 
thereby  cease  to  be  a  lien ;  but  that  it  might  be  revived  by 
scire  facias,  and  the  mortgaged  premises  subjected  to  its 
payment  at  any  time  during  the  twenty  years  provided  as  a 
limit  to  the  mortgage  lien.^  In  Iowa,  it  is  well  settled  that 
if  a  judgment  or  decree  be  entered,  foreclosing  a  mortgage, 
the  lien  of  the  mortgage  continues  until  the  judgment  is 
satisfied  or  is  barred  by  the  Statute  of  Limitations.* 

§  399  Decree  Including  Senior  and  Junior  Blortgage. — 
In  an  action  of  foreclosure,  the  holder  of  a  senior  mortgage 
may  be  made  by  a  party  defendant;  and  the  decree  may  be 
so  entered  as  to  require  his  lien  to  be  first  satisfied  out  of 
the  proceeds  of  the  sale.  The  purchaser  under  such  a 
decree  probably  takes  title  as  well  by  the  senior,  as  by 
the  junior  mortgage.  "  He,  at  all  events,  acquires  such  an 
interest  as  a  court  of  equity  will  protect  from  the  lien,  of  a 
judgment  subordinate  to  the  senior  and  paramount  to  the 
junior   mortgage,  by  requiring  the  judgment  creditor  be- 


1  The  People  v.  Beebe,  1  Barb.  379. 

2  Gage  V.  Brewster,  31  N.  Y.  p.  22G. 

3  Eiley's  Admr.  v.  McCord's  Admr. 


21  Mo.  285;  see  also  Priest  v.  "Wheel- 
lock,  58  111.  114. 

*  Henderson  v.  Ping,  24  Iowa,  134; 
Stahl  V.  Koost,  34  Id.  476. 

411 


§§^00-401  LAW  OP  JUDGMENTS.  [Chap.  XIV. 

foi'o   asserting  his  lien  to  pay  tlie  amount  of    tlio   senior 
mortgage.  "1 

§  400.  Surplus. — "  The  surplus  money  arising  on  a  sale 
of  land  under  mortgage  foreclosure  stands  in  the  place  of  the 
land,  in  respect  to  those  having  liens  or  vested  rights  there- 
in, and  the  widow  of  the  owner  of  the  equity  of  redemption 
is  entitled  to  dower  in  the  surplus,  as  she  was  in  the  laud 
before  the  sale."^ 

§  401.  Different  kinds  of  Decrees. — The  two  hundred 
and  forty-sixth  section  of  the  Practice  Act  of  California,  as 
originally  enacted,  provided  that  in  an  action  to  foreclose  a 
mortgage  or  other  lien,  "the  court  shall  liave  power  by  its 
judgment  to  direct  a  sale  of  the  property,  or  any  part  of  it, 
the  application  of  the  proceeds  to  the  payment  of  the 
amount  due  on  the  mortgage,  lien  or  incumbrance,  with 
costs,  and  execution  for  the  balance."  Under  this  sec- 
tion it  was  well  established  by  a  series  of  decisions,  that 
a  definite  personal  judgment  might  at  once  be  rendered 
against  the  mortgagor,  under  which  the  sheriff  could  make 
a  sale  and  apply  the  proceeds,  without  any  proceedings  on 
the  part  of  the  court  being  required  to  ascertain  the  de- 
ficiency ;  or  a  decree  might  be  taken  according  to  the 
course  pursued  under  the  old  chancery  system,  "  adjudging 
the  amount  duo  upon  the  personal  obligation  of  the  mort- 
gagor, and  directing  a  sale  of  the  premises  and  the  appli- 
cation of  the  proceeds  to  its  payment,  and  apply,  after  the 
sale,  for  the  ascertainment  of  any  deficiency,  and  execution 
for  the  same.  2  A  judgment  of  the  first  named  kind  consti- 
tuted a  lien  on  the  real  estate  of  the  defendant  from  the 
docketing  thereof  ;  but  a  decree  according  to  tlio  chancery 
form  constituted  no  lien  on  the  other  lands  of  the  debtor. 
The!  reasons  for  holding  such  a  decree  not  to  be  a  lien  were 
thus  stated  by  the  court:  "A  mere  contingent  provision,  re- 
ferring to  no  particular  amount,  and  in  abeyance  until  the 
contingency  is  determined,  is  not  within  the  meaning  of  the 
statute.     It  may  become  a  valid  and  perfect  judgment;  but 


^  llaymond  v.  Holborn,  23  Wis.  G7. 

2  Mathews  V.  Duryee,  45  Barb.  C9. 

3  Eowlaud   V.  Ldby,  U  Cal.  15G  ; 

412 


Eollins  V.  Forbes,  10  Cal.  299;  Eng- 
luud  V.  Lewis,  25  Cal.  337. 


Chap.  XIV.]       LIENS  RESTRICTED  BY   STATUTE.  §^401-402 

until  tlie  amount  to  be  recovered  is  ascertained  and  fixed, 
no  effect  can  be  given  to  it  as  a  lieu.  In  the  present  case 
the  provisions  in  question  were  of  this  character,  and  no 
general  lieuAvas  acquired  by  the  docketing  of  the  judgment. 
It  is  no  answer  to  saj  that  the  judgments  contained  a  state- 
ment of  the  amount  due.  There  was  no  personal  judgment 
for  this  amount,  nor  was  there  anything  in  the  nature  of  a 
personal  judgment,  beyond  the  mere  direction  for  the  issu- 
ance of  an  execution,  in  the  event  of  the  insufficiency  of  the 
mortgaged  property  to  pay  the  debt.  The  whole  matter 
was  contingent,  indefinite  and  uncertain,  and  so  long  as  this 
continued  to  be  the  case,  no  effect  whatever  could  be  given 
to  it.'" 

§  402.  Liens  restricted  by  Statute. — But  the  two  hun- 
dred and  forty-sixth  section  of  the  Practice  Act  was  amended 
in  1861,  by  the  addition  of  a  clause  providing  that  if  it  be 
ascertained  from  the  return  of  the  sheriff,  that  a  balance  is 
still  due  to  the  plaintiff,  "the  judgment  shall  then  be 
docketed  for  such  balance  against  the  defendant  or  de- 
fendants, personall}'  liable  for  the  debt,  and  shall  from 
the  time  of  the  docketing  thereof  be  a  lien  upon  the 
real  estate  of  the  judgment  debtor."  This  section,  as 
thus  amended,  has,  with  a  slight  change  in  form,  been 
adopted  as  the  seven  hundred  and  twenty-sixth  section 
of  the  Code  of  Civil  Procedure.  The  amendment  of 
1861  "seems  to  have  been  designed  to  limit  the  remedy 
of  the  mortgage  creditor  to  his  security,  in  cases  when  a 
decree  for  mortgaged  premises  is  had,  until  that  was  ex- 
hausted, and  then  to  give  him  a  lien  on  all  his  debtors'  real 
property  subject  to  execution  for  the  balance  remaining 
due,  from  the  time  the  same  should  be  duly  ascertained 
and  the  judgment  docketed  for  that  balance."  "With  re- 
spect to  a  judgment  in  personam  coupled  with  a  decree 
foreclosing  a  mortgage,  and  directing  a  sale  of  the  mort- 
gaged premises,  the  judgment  is  to  be  docketed  for  the 
balance  which  may  remain  due  after  the  mortgaged  prop- 


'  Chapin  v.  Broder,  IG  Cal.  403,  af- 
firmed in  Euglund  v.  Lewis,  25  Cal. 
337;  see  also  similar  conclusions  ex- 


pressed in  Hays  v.  Miller,  1  Wash. 
Terr.  163. 

413 


§§402-40  i  LAW  OF  JUDGMENTS.  [Chap.   XIV. 

erty  is  exhausted,  and  from  that  event,  that  is,  the  docket- 
ing, the  judgment  shall  be  a  lien  on  the  debtor's  real  prop- 
erty, and  may  thereafter  subsist  as  a  lien  for  two  years. "i 

PAKT  VIII.-JUDGIilENTS  IN  THE  FEDERAL  COURTS. 

§  403.  Adoption  of  State  Laws.— The  lien  of  definite 
judgmeBis  in  personam,  in  the  federal  courts,  is  govei'ned 
by  tho  laws  of  the  State  in  which  the  judgment  is  entered. 
It  must  not  be  supposed  from  this  statement  that  a  State 
has  authority  in  virtue  of  its  own  sovereignty  to  legislate 
upon  this  subject,  or  in  any  respect  to  extend  or  limit  the 
lien  of  the  judgments  or  decrees  of  federal  courts.  The 
applicability  of  State  laws,  arises  from  their  adoption  by 
Congress,  or  by  the  federal  courts,  or  perhaps  by  both.s 
The  lien  of  the  judgments  and  decrees  of  federal  courts,  in 
the  State  where  entered,  is  the  same  as  that  given  by  law  to 
the  judgments  of  the  highest  courts  of  original  and  general 
jurisdiction  in  that  State ;^  and  they  cease  in  the  same  man- 
ner, and  at  like  periods,  as  judgments  and  decrees  in  such 
States.*  Judgment  liens  must  be  created  by  the  govern- 
ment under  whose  authority  the  judgment  is  rendered.  The 
States  therefore  may  determine  the  efTect  of  judgments  in 
their  own  courts,  but  not  the  effect  of  judgments  in  the 
United  States  courts.  ^  A  State  law  requiring  judgments  to 
be  enrolled  in  the  county  where  the  lauds  to  be  charged  are 
situate,  before  becoming  liens,  therefore,  cannot  affect  the 
lien  of  judgments  in  the  federal  courts.*' 

§  404.  Hov»r  State  Laws  were  Adopted. — In  respect  to 
the  manner  in  which  the  State  laws  were  adopted,  a  differ- 
ence of  opinion  is  manifest  from  tho  decisions  made  by 
judges  of  federal  courts.     One  view  is— 1.   "That  the  lien 


J  Culver  V.  Rogers,  23  CuL  520.  The 
same  rule  prevails  in  Nevada.  Weil 
V.  Ilowaril,  4  Nev.  384. 

2  Clements  v.  Berry,  11  How.  411; 
U.  R.  V.  Iklorrison,  4  Pet.  124;  Ralston 
V.  Bell,  2  Dull.  138;  Ward  v.  Cham- 
berlain, 2  Black,  438. 

3  Pollard  V.  Cocke,  10  Ala.  188. 

414 


4  Choteau  v.  Nuckolls,  20  Mo.  442; 
Williams  v.  Benedict,  8  How.  U.  S. 
107. 

'>  Corwin  v.  Benham,  2  Ohio  S.  36. 

r-  Carroll  v.  Watkins,  1  Abb.  U.  S. 
474;  U.  S.  V.  Halstead,  lOWheat.  51; 
Cropsey  v.  Randall,  2  Blatchf.  341; 
Ward  V.  Chamberlain,  2  Black.  430. 


Cliap.  XIV.]     HOW  STATE  LAWS  WERE  ADOPTED.  §404 

of  judgmdnts  in  tlie  courts  of  the  United  States  does  not 
result  from  any  direct  legislation  of  Congress  on  that  sub- 
ject. 2.  That  under  the  Judiciary  Act,  which  ordains  that 
the  laws  of  the  several  States  shall  be  rules  of  decision  at 
common  law,  the  courts  of  the  United  States  have  uniformly 
adopted  the  principles  of  State  policy  and  jurisprudence  on 
the  subject  of  the  lien  of  judgments,  so  far  as  the  same 
were  applicable,  treating  them  as  rules  affecting  real  prop- 
erty and  its  transmission  by  descent  or  purchase."^  The 
other  view  is  thus  stated  by  Mr.  Justice  Clifford  in  Ward  v. 
Chambeiiain  (2  Black.)  430.  "Expressions  are  to  be  found 
in  one  or  more  of  the  cases  referred  to,  which  countenance 
the  idea  that  the  State  laws  in  respect  to  the  lien  of  judg- 
ments and  decrees  were  adopted  by  the  courts  of  the  United 
States;"  but  upon  a  closer  examination  of  the  subject  it  will 
appear,  we  think,  that  those  laws  are  recognized  and  sub- 
stantially adopted  by  the  "Acts  of  Congress  regulating- 
process  in  the  courts  of  the  United  States."  His  Honor, 
after  referring  to  the  several  acts  passed  by  Congress  upon 
the  subject,  and  especially  to  the  third  section  of  the  act  of 
May  19,  1828,  which  provides  ^'ilnxiiurlts  of  execution  and 
other  final  process,  issued  on  judgments  and  decrees  ren- 
dered in  amj  of  the  courts  of  the  United  States,  and  the  pro- 
ceedings thereon,  shall  be  the  same,  except  their  style,  in 
each  State  respectively,  as  are  now  used  in  the  courts  of 
such  State,  adds:  "Undoubtedly  Congress  intended,  by 
that  provision,  to  adopt  the  State  laws  in  respect  to  the  pro- 
ceedings on  final  process,  as  they  existed  at  the  date  of  the 
act,  and  the  effect  of  the  enactment,  or  one  of  its  effects 
was  to  render  judgments  and  decrees  for  the  payment  of 
money  rendered  in  the  federal  courts,  a  lien  on  the  land  of 
the  debtor,  in  all  cases  and  under  like  circumstances  as 
when  rendered  in  State  courts.  Under  the  earlier  process 
acts,  this  court  twice  decided  that  the  laws  of  the  States 
furnished  the  rule  of  decision  in  respect  to  the  lien  of  judg- 
ments and  decrees  rendered  in  the  federal  courts,  upon  the 
land  of  the  debtor,  and  since  the  passage  of  the  act  under 
consideration  it  has  been  twice  afErmed  by  this  court  as  a 


1  Lombard  v.  Bayard,  1  WalL  Jr.  196. 


415 


gg-405-406  LAW  OF  JUDGMENTS.  [CLap.  XTV. 

matter  of  history,  that  the  act  was  passed  to  confirm  the 
view  expressed  in  those  decisions."^ 

§  405.  The  liens  of  the  judgments  of  the  several  courts 
of  the  United  States,  are  charges  upon  all  the  lands  of  the 
judgment  debtors,  situate  within  the  territorial  limits  of 
the  jurisdiction  of  the  court  pronouncing  judgment,  upon 
which  a  judgment  of  like  character  entered  in  one  of  the 
courts  of  the  State  in  which  such  lands  are  included,  would 
have  been  a  lien.  ^ 

§  40G.  Decrees  in  Admiralty. — It  seems  that  until  the 
year  18G2,  the  decree  or  sentence  of  a  Court  of  Admiralty 
was  not  supposed  to  create  a  lian  on  the  debtor's  lands.  Mr. 
Justice  Grier,  in  that  year,  in  a  very  vigorous  dissenting 
opinion,  said:  "It  is  now  seventy  years  since  the  establish- 
ment of  Courts  of  Admiralty  in  these  States,  yet  it  seems 
that  the  boundary  of  their  jurisdiction  is  not  yet  settled. 
During  all  this  time  it  has  never  been  supposed  that  the 
definitive  sentence  or  decree  of  a  Court  of  Admiralty  was  a 
lien,  or  could  be  levied  on  lands.  The  dominion  of  the 
Admiral  was  over  the  sea — the  ships  and  men  who  frequented 
it — their  contracts  and  their  torts.  His  court  proceeded 
either  against  the  ship  or  the  owner,  by  arrest  of  the  thing 
or  the  person."  But  a  majority  of  the  court  were  of  the 
opinion  that,  whatever  the  practice  or  understanding  of  the 
courts  may  have  been,  the  terms  of  the  act  of  1828  were 
too  broad  not  to  include  Courts  of  Admiralty.  Justice 
Clifford,  in  the  opinion  assented  to  by  a  majority  of  the 
judges,  said  :  "Courts  of  justice  may  construe  a  legislative 
opinion,  but  they  cannot  repeal  what  is  expressly  enacted. 
When  Congress,  in  plain  and  unambiguous  terms,  declares 
that  writs  of  executions  on  decrees  rendered  in  any  of  the. 
courts  of  the  United  States,  and  the  proceedings  thereupon, 
shall  be  the  same  as  are  now  used  in  the  courts  of  such 
State,  it  is  not  possible  for  this  court  to  hold  that  the  de- 
crees of  one  of  the  courts  of  the  United  States  are  not 


1  Beers  v.  Hatighton,   9  Pet.  361; 
Eoss  V.  Duval,  13  Pet.  G4. 

2  United  States  v.  Duncan,  12  111. 
523;  Trapnall  v.  llichardson,  13  Ark. 

41G 


543;  Doe  v.  Jones,  2  McL.  73;  Con- 
rad i;.  Insurance  Co.,  1  Pet.  453;  By- 
ers  V.  Fowler,  7  Eng.  27G;  Sellers  v. 
Corwiu,  5  Ohio,  398. 


Chap.  XIV.]  DECKEES  IN  ADMIRALTY.  §406 

embraced  in  that  provision ;  especially  not,  as  the  very  court 
whose  decrees  it  is  said  are  excluded  from  the  provision,  is 
specifically  mentioned  in  the  first  section  of  the  same  act  as 
one  of  the  courts  of  the  United  States,  and  its  proceedings 
there  made  the  subject  of  special  and  material  regulation. 
Exclusive  original  jurisdiction  in  admiralty  and  maritime 
cases'  is  conferred  upon  the  District  Courts  of  the  United 
States,  but  the  Circuit  Courts  hear  such  cases  on  appeal, 
and,  as  a  matter  of  daily  practice,  render  decrees  therein 
for  the  payment  of  money;  and  it  is  not  to  be  doubted,  we 
think,  that  such  decrees  are  as  much  within  the  provisions 
under  consideration  as  decrees  in  equity;  and,  if  so,  no 
reason  is  perceived  why  the  same  rule  should  not  be  applied 
to  decrees  of  a  like  character  rendered  in  the  District 
Courts."^ 

1  Ward  V.  Chamberlain,  2  Black.  U.  S.  430 

(27)  417 


g407  LAW  OP  JUDGMENTS.  [Chap.  XY< 


CHAPTER  XT. 

JUDGMENTS  AS  EVIDEXCU. 

PART  I.— OF  THE  MODE  OF  FROOF. 

§  407.  Necessity  of  Record  Proof. 

§  408.  Proof  of  Copies. 

§  409.  Judgment  Book  as  Evidence. 

§  410.  Inferior  Courts. 

§411.  Authentication  of  Sister  States. 

§  412.  The  Certificate. 

§  413.  The  Judge. 

§  414.  Authentication  of  Foreign. 

PART  II.— ADMISSIBILFTY  AND  EFFECT. 

§  415.  Statement. 

§  416.  Judgment  as  Proof  of  Itself. 

§  417.  Judgment  as  matter  of  Inducement. 

§  418.  Judgment  to  show  that  Plaintiff  is  a  Creditor  of  Defendant. 

i  419.  Questions  of  Public  Nature,  provable  by  evidence  of  Reputation. 

§  420.  Decree. 

PART  I.— OF  THE  MODE  OF  PROOF. 

§  407.  Necessity  of  Record  Proof. — A.t  common  law, 
"when  the  existence  of  a  judgment  is  put  in  issue,  upon 
a  plea  or  replication  of  mil  tiel  record,  it  must  be  proved  by 
the  production  of  the  record  itself;  which  is  iitspected  by 
the  court  wherein  it  is,  if  it  be  a  record  of  the  same  court, 
or  if  of  a  different  court,  a  certiorari  must  be  sued  out  for 
bringing  it  in.  And  if  it  be  a  record  of  an  iuferior  court, 
.the  certiorari  may  be  issued  out  of  the  superior  one ;  but  if 
it  be  of  a  superior  court,  or  court  of  equal  jurisdiction,  there 
is  no  way  to  have  it  but  by  certiorari  and  mittimus  out  of 
chancery."'  In  a  recent  case  in  North  Carolina  the  position 
is  maintained  that,  in  no  event,  can  the  production  of  the 
record  be  dispensed  with.  That,  if  it  be  lost,  the  party 
who  wishes  to  use  it  in  his  behalf,  must  take  such  pro- 
ceedings in  the  court  where  it  was  made  as  are  necessary 
to  create  a  new  record,  and  have  it  substituted  in  place  of 

»  Tidd's  Pr.  943;  Greenl.  Ev.  Sees.  501  and  502,  Vol.  I. 
418 


Chap.  XV.]  NECESSITY   OP   RECORD   PROOF. 


M07 


the  old  one.^     This  view  is  in  direct  conflict  with  that  ex- 
pressed  by  Mr.    Greenleaf   in   his   work   on   evidence,  in 
which  he  lays  down  the  following  rule:     "If  the  record  is 
lost,  and  is  ancient,  its  existence  and  contents  may  some- 
times be  presumed;  but  whether  it  bo  ancient  or  recent, 
after  proof  of  the  loss,  its  contents  may  be  proved,  like 
any  other  document,  by  any  secondary  evidence,  where  the 
case  does  not,  from  its   nature,    disclose  the   existence  of 
other  and  better  evidence."^     In  Canada,   a  defendant  in 
ejectment  claimed  under  a  sheriflf's  deed.     He  showed  that 
the  files,  dockets  and  all  papers  of  the  court  had  been  de- 
stroyed by  fire,  except  a  fee  book,  iu  which  book  there  was 
a  fee  for  a  judgment  entered  in  a  case  therein  specified. 
He  then  proved,  by  parol  evidence,  the  rendition  and  con- 
tents of   the  judgment;  and   that   the    sheriff's   deed   had 
issued  in  pursuance  of  a  sale  had  under  such  judgment. 
The  admission  of  this  evidence  was  urged  on  appeal  as  an 
error  sufficient  to  warrant  a  reversal;  but  the  judge  who 
delivered  the  opinion  of  the  Appelate  Court,  said:     "Con- 
ceding that  matters  of  record,  such  as  the  judgment  and  writ 
here,  should  be  ordinarily  proved  by  exemplification,  yet 
when  the  records  themselves  are  proved  to  be  wholly  destroy- 
ed, it  seems  simply  an  impossibility  to  exemplify  them.  No 
doubt  there  are  cases  where  the  court  have  ordered  a  record 
to  be  made  up  from  the  best  materials  available,  to  supply 
the  place  of  one  that  was  lost,  but  in  the  case  before  us  there 
was  nothing  on  which  a  record  could  be  made  up,  and  ifc 
could  hardly  be  advisable  to  leave  it  wholly  to  the  imagina- 
tion of  the  Clerk  of  the  Court  to  make  up  a  record  from  an 
entry  iu  a  fee  book."^     But  iu  the  absence  of  the  loss  or  de- 


1  Walton  V.  McKesson,  CI  N.  C.  77. 

2 Vol.  1.  Greenl.  Ev.  Sees.  84  and 
509;  McQueen  v.  Fletcher,  4  EichEq. 
152.  Mr.  Greenleaf  s  rule  is,  be- 
yond a  doubt,  sustained  by  the  weight 
of  the  authorities.  Ames  v.  Hoy,  12 
Cal.  11;  in  the  matter  of  Warfield's 
Will,  22  Cal.  G4;  Stockbridge  v.  West 
Stocbridge,  12  Mass.  400;  Jackson  t). 
Crawford,  12  Wend.  533;  Newcombu. 
Drummoud,  4  Leigh  57;  Jackson  v. 
Cullum,  2  Blkf.  228;  Davies  v  Pettit, 


14  Ark.  359;  Mason  v.  Bull,  2(5  Ark. 
164. 

sHeany  v.  Parker,  27  Q.  B.  (Up. 
per  Canada)  513;  citing  Thurston  v- 
Slatford,  Salk.  284;  Ptoscoe  v.  Ev. 
10th  ed.  93;  Macdougal  v.  Young,  K. 
&  M.  392;  Lansing  t>.  Eussell,  3  Barb. 
Ch.  325;  Bolan  v.  Bolau,  4  Nev.  150; 
Graham  v.  Gordon,  1  Chip.  115;  Jamts 
V.  Kerby,  29  Geo.  G84;  Watson  v^ 
Hahu,  1  Colorado,  385;  Mason  v. 
Bull,  2G  Ark.  1G4. 

419 


§g407-409  LAW  or  jitdgmexts.  [Cliap.  XV. 

struction  of  the  record,  it  cannot  be  proved  otherwise  than 
bj  the  original,  or  by  a  duly  authenticated  co-pj.  But  in 
case  of  the  admitted  loss  of  the  original  record,  no  proof  of 
its  contents  will  be  received  except  the  best  and  most  au- 
thentic proof  which  remains  susceptible  of  production/ 

g  408.  Proof  by  Copies. — "  As  fo  the  i:)r  oof  of  records,  this 
is  done  either  by  mere  production  of  the  records,  without 
more,  or  by  a  copy.  Copies  of  the  record  are,  1st,  exem- 
plifications; 2d,  copies  made  by  an  authorized  ofiicer;  3d, 
sworn  copies.  Exemplifications  are  either  first  under  the 
great  seal,  or,  secondly  under  the  seal  of  the  court  where 
the  record  remains.  In  the  United  States,  the  great  seal 
being  usually,  if  not  always,  kept  by  the  Secretary  of  State; 
an  exemplified  copy,  under  the  seal  of  the  court,  is  usually 
admitted,  even  upon  an  issue  of  nid  iiel  record,  as  sufficient 
evidence. "2  An  oj^ce  copy  of  the  record  is  made  either  by 
an  officer  having  no  other  authority  than  the  order  of  the 
court  directing  him  to  make  the  copy  for  the  convenience 
of  suitors,  or  by  an  officer  whose  duty  it  is,  by  the  law,  to 
furnish  copies.  In  the  first  case,  the  office  copy  is  not  proof 
except  in  the  same  cause  and  in  the  same  court  v.herein  it 
was  ordered  to  be  made.  In  the  second  case  the  office  copy 
is  equivalent  to  the  record.^  "The  proof  of  records,  by 
an  examined  copy,  is  by  producing  a  witness  who  has  com- 
pared the  copy  with  the  original,  or  with  what  the  officer  of 
the  court,  or  any  other  person,  read  as  the  contents  of  the 
record."* 

g  409.  The  Judgment  Book,  according  to  the  common 
law  practice,  seems  to  have  been  a  mere  minute  or  memo- 
randum book,  containing,  however,  no  entry  which  could 
constitute  any  evidence  of  the  judgment.  The  judgment 
became  a  permanent  record  only  when  the  roll  was  brought 
into  court  and  filed.  It  could  not  be  proved  by  mere 
docket  entries."  "The  minutes  from  which  the  record  is 
made  up,   and  even  a  judgment  in  paper,   signed  by  the 

iNoteto  Sec.  84,  Vol.  1,  Greenl.  Ev.  I  further  rules  in  relation  to  proof  by 
2 Vol.  1  Greenl.  Ev.  501.  copies. 

3 Vol.  1  (Jroenl.  Ev.  v^  507.  5Brownu.  Hathaway,  10  Jlinn.  303; 

4  See  vol.    1  Greenl.   Ev.  508,    for  '  Godefroy  r.  Joy,  1  Moore  &  P.  236. 
420 


Chap.  XV.]       AUTHENTICATION   OF  JUDGMENTS.  g^l09-411 

master,  are  not  proper  evidence  of  the  record. "^  But  where, 
instead  of  conforming  to  the  common  law  system  of  pro- 
cedure, the  law  requires  the  entry  to  be  made  in  the  judpf- 
meut  book,  and  a  copy  thereof  to  be  made  and  filed  as  part 
of  the  judgment  roll,  the  entry  in  the  book  must  be  re- 
garded as  the  formal  and  permanent  record  entry,  and 
therefore  as  evidence  of  the  judgment."  The  vacature  of  a 
judgment  must  be  enrolled,  or  entered  of  record,  before  it 
can  be  given  in  evidence  against  the  judgment.^ 

§  410.  Judgments  of  Inferior  Courts. — "  The  judgments 
of  inferior  courts  are  usually  proved  by  producing  from  the 
proper  custody  the  book  containing  the  proceedings;  and 
as  the  proceedings  in  these  courts  are  not  usually  made  up 
in  form,  the  minutes,  or  examined  copies  of  them  will  be 
admitted,  if  they  are  perfect.  If  they  are  not  entered  in 
books,  they  may  be  proved  by  the  officer  of  the  court,  or  by 
any  other  competent  person.  In  either  case,  resort  Avill  be 
had  to  the  best  evidence,  to  establislr  the  tenor  of  the  pro- 
ceedings; and,  therefore,  where  the  course  is  to  record 
them,  which  will  be  presumed  until  the  contrary  is  shown, 
the  record,  or  a  copy,  properly  authenticated,  is  the  only 
competent  evidence.  The  caption  is  a  necessary  part  of  the 
record;  and  the  record  itself,  or  an  examined  copy,  is  the 
only  legitimate  evidence  to  prove  it."*  In  an  action  in 
Canada,  on  a  judgment  rendered  by  a  justice  of  the  peace 
in  Michigan,  the  judgment  was  proved  by  introducing  the 
book  in  which  the  judgment  was  recorded,  and  by  proving 
that  the  handwriting  was  that  of  the  justice,  and  that  the 
witness  remembered  the  rendition  of  the  judgment,  s 

g  411.     Authentication  of  Judgments  of  other  States. — 

"The  statute  of  the  United  States  of  the  twenty-sixth  of 
May,  1790,  declares,  that  the  records  and  judicial  proceed- 
ings of  the  courts  of  any  State  shall  be  proved  and  admitted 
in  any  other  court  w'ithin  the  United  States,  by  the  attesta- 
tion of  the  clerk  and  the  seal  of  the  court  annexed,  if  there 

iVol.  ]  Greenl.  Ev.  ^  508.  |      sMcKnight  v.  Dunlop,  4  Barb.  36. 


2  Williams  v.  McGrade,    13  Miuu. 
46. 


4 Greenl.  Ev.  513,  vol.  1. 
5  Kerby  u.  Elliott,  13  Upper  Canada 
Q.  B.  367. 

421 


§^411-412  LAW  OF  JUDGMENTS.  [Chap.  XY. 

be  a  seal,  together  with  a  certificate  of  the  jviclgo,  chief 
justice,  or  presiding  magistrate,  as  the  case  may  be,  that 
the  said  attestation  is  in  due  form  of  law."'  Any  State  may 
pass  a  law  dispensing  with  any  part  of  the  authentication 
prescribed  by  the  act  of  Congress;  but  no  State  can  require 
that  a  judgment  be  authenticated  in  a  different  manner  than 
that  provided  by  Congress.  ^ 

{J  412.  The  Certificate. — A  certificate  of  a  clerk  certify- 
ing the  transcript  to  be  a  "full,  true  and  complete  transcript 
of  all  the  proceedings  had  in  the  above  case  as  now  remains 
of  record  and  on  file  in  my  office,"  accompanied  by  the  cer- 
tificate of  the  judge,  that  "the  certificate  is  in  due  form  of 
law,"  is  a  sufiicient  authentication. ^  And,  in  Pennsylvania, 
a  certificate,  that  "the  foregoing  copy  of  records  is  truly 
taken  and  correctly  copied  from  the  records  of  judgments 
of  said  court  remaining  in  my  office,"  has  frequently  been 
taken  and  presumed  to  be  a  copy  of  the  luhole  record.-*  The 
certificate  of  the  judg-e,  that  "the  certificate  is  in  due  form 
of  law,"  is  conclusive.''  It  has  been  determined  that  the 
certificate  of  the  judge  "must  be  annexed  to  the  exemplifi- 
cation of  the  record,  and  cannot  be  on  a  separate  piece  of 
paper.""  "The  attestation  of  the  copy  must  be  according 
to  the  form  used  in  the  State  from  which  the  record  comes; 
and  it  must  be  certified  to  be  so  by  the  presiding  judge  of 
the  court,  the  certificate- of  the  clerk  to  that  efiect  being  in- 
sufficient. Nor  will  it  suflice  for  the  judge  simply  to  certify 
that  the  person  who  attests  the  copy  is  the  clerk  of  tho 
court,  and  that  the  signature  is  in  his  handwriting.  The 
seal  of  the  court  must  be  annexed  to  the  record  with  the 
certificate  of  the  clerk,  and  not  to  the  certificate  of  the 
judge."''  In  Illinois,  it  has  been  held  that  the  judge  is  not 
required  to  state  that  the  person  certifying  is  the  clerk,  nor 
that  the  seal  annexed  is  the  seal  of  the  court;  that  the  seal 
speaks  for  itself  and  is  presumed  to  be  attached  by  the 


1  Ferguson   v.   Howard,  7  Cranch, 
408. 

2  Pnrke  v.  Williams,  7  Cal.  247. 

3  Blair  v.  Caldwell,  3  Mo.  353. 

*  R.ber  v.  Wright,  68  Penn.  S  471; 
and  cases  tlarro  cited. 

422 


5  Grover  v.  Grover,  30  Mo.  400. 

6  Norwood  V.    Cobb,  20  Tex.   588. 
McFarlaue  ?;.  Harrington,  2  Bay.  555; 

7  Greenl.  Ev.  vol.  1,  see.  506. 


Chap.    XII.]  FOREIGN  JUDGMENTS.  g§412-414 

officer  charged  by  law  with  the  custody  thereof.'  If  the 
court,  whose  record  is  authenticated,  has.no  seal,  that  fact 
should  be  stated  either  in  the  certificate  of  the  clerk,  or  in 
that  of  the  judge.* 

§  413.  The  Judge,  — It  must  appear  that  the  judge  who 
undertakes  to  attest-  the  record  is  the  judge  of  the  court 
which  rendered  the  judgment.  An  attestation  by  T.  A.  J., 
"presiding  judge  of  the  Supreme  Court  of  the  State  of 
New  York,  in  the  seventh  district,  is  defective  in  not  show- 
ing him  to  be  the  judge  of  the  county  where  the  judgment 
was  entered."^  The  authentication  must  be  by  the  judge, 
if  there  be  but  one.  If  there  be  more  than  one,  it  must  be 
by  the  chief  justice  or  presiding  judge.*  The  judge  certifying 
must,  at  that  time,  be  the  judge,  chief  justice,  or  presiding 
judge.  Hence,  where  the  jiidges  act  as  chief  justice  by  ro- 
tation, the  authentication  cannot  be  made  by  any  one  of 
them,  but  only  by  the  one  who,  for  the  time  being,  is  chief. ^ 
If  a  court  cease  to  exist,  and  its  records  are  transferred  to 
another  court,  the  clerk  and  judge  of  the  latter  thereby 
become  proper  persons  to  authenticate  the  records  of  the 
former.^  Where  several  judges  preside  in  the  same  court, 
neither  having  any  temporary  or  j)ermanent  rank  above  the 
others,  and  all  being  apparently  on  perfect  equality  with 
one  another,  an  authentication  in  which  all  unite,  has  been 
regarded  as  sufficient.'^ 

^  414.  Authentication  of  Foreign  Judgments. — Foreign 
judgments  are  authenticated  either — "1.  By  an  exemplifi- 
cation under  the  great  seal.  2.  By  a  copy  proved  to  be  a 
true  copy.  3.  By  the  certificate  of  an  officer  authorized  by 
law,  which  certificate  must  itself  be  properly  authenticated." 
If  all  these  means  be  beyond  the  reach  of  the  party,  other 
and  inferior  testimony  may  be  received.  But  a' copy  of  a 
foreign  decree,  certified  by  the  signing  of  a  name  with  the 
addition  to  it  of   "Secretary  of  State  of  foreign  aflairs," 


1  Ducommun  v.  Hysinger,  14  111. 
249. 

2  Craig  V.  Brown,  1  Pet.  C.  C.  352  ; 
Kirkland  v.  Smith,  2  Martiu  N.  S, 
497. 


3  Phelps  V.  Tilton,  17  Ind.  423. 
■•  Stewart  u.  Graj-,  Hemp,  94. 

5  Shaw  V.  Ilurd,  3  Bibb,  371, 

6  Thomas  v.  Tanner,  6  Monr.  52. 
"  Arnold  v.  Frazier,  5  Strob.  33. 

423 


g414  LAW   OF  JUDGMENTS.  [Chap.  XV. 

witli  a  private  seal,  is  neither  sujQ&cient  as  an  authentication 
nor  admissible  as  secondary  evidence.^  A  foreign  judg- 
ment is  sufficiently  authenticated  when  a  copy  is  produced, 
accompanied  by  an  affidavit  stating  that  the  affiant  applied 
to  the  reputed  clerk  of  the  court,  for  a  copy  of  the  record 
of  the  judgment;  that  he  assisted  the  clerk  in  comparing 
the  copy  with  the  record,  and  in  affixing  the  seal  of  the 
Court  to  the  copy;  and  saw  the  same  clerk  attest  the  copy 
by  putting  his  name  to  it.''  A  record  with  the  attestation  of 
the  clerk,  with  the  seal  of  the  court  and  the  certificate  of 
the  chief  justice,  that  the  person  attesting  the  record  is  the 
clerk  and  that  his  signature  is  genuine;  and  with  the  cer- 
tificate of  the  Assistant  Secretary  of  State  of  the  province, 
accompained  by  that  of  the  Governor  in  charge  of  the 
province,  attested  by  the  great  seal,  and  certifying  that 
such  court  is  lawfully  and  duly  constituted,  and  specifying 
its  jurisdiction;  and  Avhich  also  verifies  the  signature  of  the 
clerk  and  of  the  chief  justice,  is  a  sufficient  exemplification.^ 
The  admission  of  a  record  of  a  foreign  court  is  authorized 
"if  the  proceeding  has  the  attestation  of  the  clerk  of  such 
court,  with  the  certificate  of  the  Chief  Justice  that  the  per- 
son attesting  is  such  clerk,  and  that  his  signature  is  genuine; 
and  with  the  further  certificate  of  the  Secretary  of  State,  or 
other  officer  holding  the  great  seal,  purjoorting  that  the 
court  is  duly  constituted,  specifying  generally  the  nature  of 
its  jurisdiction,  and  verifying  the  seal  and  signature  of  the 
clerk  and  of  the  Chief  Justice;"  and  if  it  be  admitted  that 
the  person  signing  as  clerk  was  in  fact  such  clerk,  the  cer- 
tificates of  the  Chief  Justice  and  of  the  Secretary  of  State 
are  superfluous.*  A  copy  of  a  judgment  entered  at  Havana, 
signed  by  the  clerk  who  was  keeper  of  the  records  of  the 
court;  with  proof  that  his  signature  validated  all  its  pro- 
ceedings; that  the  court  had  no  seal;  that  the  seal  used  to 
the  certificate  was  that  of  the  Koyal  College  of  Notaries,  and 
that  the  document  is  authenticated  in  the  way  in  which 
records  were  commonly  authenticated,  when  sent  to  foreign 
countries,  was  held  to  be  a  sufficient  exemplification.^ 


1  Churclau.  Hubbard,  2  Cranch,  187. 

2  Buttrick  v.  Allen,  8  Mass.  273. 

3  Lazier  v.  Wescott,  26  N.  Y.  U6. 

424 


4  Capling  V.  Herman,  17  Mich.  524. 

5  Packard  v.  Hill,  7  Cow.  434.     For 
further  rules  in  regard  to  authenti- 


Chap.  XV.] 


TO  PPvOVE  ITSELF. 


U^U-AIG 


PART  II.— OF  ADMISSIBILITY  AND  EFFECT  OF  JUDGMENTS. 

§  415.  In  treating,  in  different  parts  of  this  work,  upon 
the  various  effects  directly  and  indirectly  resulting  from 
judgments,  and  in  considering  the  different  ]Dersor:s  who  are, 
under  the  law,  bound  by  judgments  as  parties  or  privies 
thereto,  nearly  all  the  questions  naturally  falling  within  the 
second  subdivision  of  this  chapter  have  been  c^lready  suffi- 
ciently noticed.  We  shall  therefore  confine  the  remainder 
of  this  chapter,  to  the  consideration  of  those  cases  in  which 
judgments  may  properly  be  admitted  in  evidence  for  and 
against  persons  neither  parties  nor  privies  thereto,  nor 
otherwise  bound  by  the  judgment  as  an  estoppel. 

§  416.  To  Prove  Itself.  —  "A  judgment  may  be  offered 
in  evidence  for  two  purposes  :  1st,  To  establish  the  mere 
fact  of  its  own  rendition,  and  those  legal  consequences 
which  result  from  that  fact;  2d,  In  addition  to  the  first  pur- 
pose, for  the  further  purpose  of  proving  some  other  fact  as 
found  by  that  verdict,  or  upon  whose  supposed  existence 
the  judgment  is  based."  For  the  first  of  these  purposes 
every  judgment  is  admissible  in  evidence  against  the  whole 
world. ^  Judgments  in  rem  are  generally  considered  as  ad- 
missible against  all  persons;  but  their  nature  and  efi'ect  will 
be  made  the  subject  of  a  separate  chapter.  A  judgment 
may  constitute  part  of  a  chain  of  title  to  real  or  personal 
estate ;  or,  though  not  amounting  to  title,  it  may  show  the 
character  of  the  possession  of  one  of  the  parties  to  a  suit. 
In  either  case  it  is  admissible  in  evidence  for  or  against 
strangers  as  well  as  for  or  against  the  parties  to  the  original 
suit.^  "Whenever  a  judgment  transfers  a  title,  or  is  the  foun- 
dation of  a  claim  to  possession,  it  is  admissible  upon  the 
same  principle  as  a  voluntary  conveyance.^ 


cation  of  foreign  judgments,  see  §  $ 
514,  515,  Greenl.  Ev.  and  notes; 
Junkin  v.  Davis,  22  Q.  R.  (Upper 
Canada)  369;  Woodruff  v.  "Walling, 
12  Id.  501;  Junkin  v.  Davis,  G  C.  P. 
(Upper  Canada)  408 ;  Hasketh  v. 
Ward,  17  Id.  190. 

1  Notes  273  and  274  to  Phil.  Ev.  by 
Cowen  &,  Hill;  Williams  v.  McGrade, 


13  Minn.  46  ;  Spencer  v.  Dearth,  43 
Ver.  98 ;  Harrison  v.  Harrison,  39 
Ala.  489. 

2  Buckingham  v.  Hannah,  2  Ohio 
S.  551 ;  Barr  v.  Grattz,  4  Wheat.  220  ; 
Davies  v.  Lowndes,  1  Bing.  N.  C.  597. 

3  Fowler  v.  Savage,  3  Conn.  90 ; 
Koogler  v.  Huffmann,  1  McC.  495. 

425 


§^•417-118  LAW  OF  JUDGMENTS.  [Chap.  XV. 

§417.     As    Matter    of   Inducement. — Judgments    are 
also  available  as  evidence  against  third  parties  hy  way  of 
inducement,  or  to  prove  the  existence  of  any  collateral  fact.' 
Thus  if  a  principal  should  be  sued  for  the  negligence  of  his 
agent,  the  judgment  against  him  in  this  suit  would  be  evi- 
dence in  a  suit  against  the  agent  by  the  principal,  for  the 
purpose  of  showinf;  what  the  consequence  of  the  negligence 
had  been  ;  "as  evidence  of  the  quantum  of  damages,  though 
not  as  to  the  fact  of  the  injury."^     A  judgment  against  a 
grantee  in  an  action  for  the  possession  of  land,  is  always 
evidence  against  his  warrantor,  for  the  purpose  of  showing 
an  eviction.^     Where  one  party  agrees  to  indemnify  another 
for  some  act  done,  a  judgment  rendered  against  the  latter 
in  consequence  of  such  act,  is  evidence  against  the  former 
for  the  purpose  of  showing  the  damages  sustained  by  the 
person  indemnified.^     So  in  an  action  for  contribution  be- 
tween sureties,  a  judgment  in  favor  of  a  common  creditor, 
and  against  the  principal  debtor  and  one  of  the  sureties,  to 
which  the  defendant  in  the  second  suit  was  not  a  party,  is 
nevertheless   competent   evidence,  not   merely  of  its  own 
rendition,  but  also  by  way  of  inducement  to  the  evidence 
that  the  plaintiff  in  the  present  suit  had  discharged  the  debt 
on  which  the  former  suit  was  based,  ^     A  judgment  against 
a  sheriff,  for  the  default  of  his  deputy,  is  at  least  i^rima  facie 
evidence  against  the  latter  and  his  sureties,  to  prove  that 
the  sheriff'  had  been  subjected  to  the  payment  of  a  certain 
amount  of  liability.  *^ 

I  418.  To  Prove  that  Plaintiff  is  a  Creditor.— Some 
conflict  of  authority  exists  in  regard  to  the  question, 
whether,  in  a  suit  to  set  aside  a  conveyance  by  one  claiming 
to  be  a  creditor  of  the  grantor,  a  judgment  in  favor  of  the 
plaintiff  and  against  the  grantor,  is  evidence  against  the 
grantee  to  show  that  the  plaintiff  is  a  creditor  as  he  claims 
to  be.     In  one  instance,  at  least,  such  a  judgment  was  re- 


1  King  V.  Chase,  15  N.  H.  9. 

2  Green  v.  New  River  Co.,  14  T.  K. 

590  ;  2  Smith's  Lead.  Cases,  585. 

3  Booker's  Adm'r  v.  Bell's  Ex.,  2 
Bibb,  175  ;  Murlatt  v.  Ckry,  20  Ai-k. 

426 


251 ;  Gragg  v.  Eichardsou,  26  Geo. 
570. 

■1  Lee  V.  Clarke,  1  Hill,  5G;  Copp.  v. 
McDougall,  9  Mass.  1 . 

5  Preslar  v.  Stalhvorth,  37  Ala.  -405, 

6  Cox  V.  Thomas,  9  Gratt.  323. 


Chap.  XV.  1         QUESTIONS   OF   rUBLIC  NATURE.  §§418-419 

jectetl,  because,  as  to  the  grantee,  it  was  res  inter  alios  acta.  ' 
But  the  better  opinion,  and  the  one  generally  adopted,  is, 
that  such  judgment  is  prima  facie,  though  not  conclusive, 
evidence  against  the  grantee,  of  the  fact  of  his  grantor's  in- 
debtedness. "It  is  not  inconsistent  with  the  rule  of  res 
inter  alios  acta,  that  a  judgment  should  be  taken  even  against 
third  persons,  to  be  what  it  purports  to  be,  till  the  contrary 
is  shown."' 

§  419.  Questions  of  Public  Nature. — Judgments  are 
also  admissible,  for  and  against  third  persons,  in  regard  to 
questions  which  in  general  are  susceptible  of  being  deter- 
mined mainly  by  evidence  of  common  repute;  such  as  ques- 
tions in  regard  to  customs,  tolls,  pedigrees,  prescription, 
etc.  The  solemn  adjudication  of  a  court,  based,  as  it  is 
presumed  to  be,  upon  testimony,  is  properly  considered  as 
better  proof  of  a  fact  than  evidence  of  mere  general  repu- 
tation can  be. ^  Judgments  "are  sometimes  admissible  to 
prove  the  existence  of  a  joublic  highway;  but  never,  except 
where  the  party  claims  by  prescription;  and  then,  merely  to 
corroborate  the  presumption  of  there  having  been  a  grant."* 
A.,  in  a  suit  against  C.  for  breaking  his  close,  offered  in 
evidence  the  record  in  a  like  action  of  A.  against  B.,  wherein 
B.  had  pleaded  the  same  defense  now  claimed  by  C,  namely, 
a  right  of  public  footway,  in  which  A.  had  prevailed.  Lord 
Ken  von  said :  "The  record  was  admissible  evidence,  thoucrh 
between  other  parties,  as  to  the  finding  upon  the  right  to 
a  public  footway,  which  was  negatived."^  On  the  trial  of  an 
indictment  against  a  town  for  not  repairing  an  ancient  high- 
way, a  similar  indictment  against  an  adjoining  town  through 
which  the  same  highway  ran,  to  which  said  town  had  sub- 
mitted, was  admitted  as  evidence  tending  to  prove  that  the 
road  was  a  highway.  "^  So  in  a  trial  for  tolls  claimed  by 
prescription,  verdicts  in  other  actions,  against  other  defend- 
ants, were  admitted,  because  a  recovery  against  a  stranger 


1  Troj^  V,  Smith,  33  Ala.  469. 

2Vogt  V.  Ticknor,  48  N.  H.  242; 
Goodnow  V.  Smith,  97  Mass.  CO; 
Chiirch  V.  Chapiu,  35  Verm.  231 ;  lu- 
man  v.  Mead,  97  Mass.  310. 


3  Spencer  v.  Dearth,  43  Verm.  98, 
104. 

4  Fowler  v.  Savage,  3  Conn.  9G. 
^  Keed  v.  Jackson,  1  East.  355. 

"  Eegina  v.  Brightside  Bierlou,  13 
Q.  B.  933. 

427 


1^419-420 


LAW  OF  JUDGMENTS. 


[Chap.  XV. 


Tvas  at  least  as  good  evidence  as  payment  by  the  same 
stranger  would  be.V  Another  exception  to  the  rule,  that 
judicial  records  are  admissible  only  for  and  against  the 
parties  thereto,  exists  in  the  case  of  an  adjudication  in 
regard  to  the  settlement  of  paupers.  If,  for  instance,  it  be 
determined  by  a  competent  tribunal  that  a  pauper  has  his 
settlement  in  the  town  of  A.,  this  determination  is  conclusive 
against  A.  in  a  contest  with  any  other  town.  Such  adjudi- 
cations seem  to  hejudgmenis  in  rem,  and  binding  on  every- 
body. 2 

§420.  Decrees. — "A  decree  in  the  Court  of  Chancery 
may  be  given  in  evidence  on  the  same  footing  and  under 
the  same  limitations  as  a  verdict  or  judgment  of  a  coiart  of 
common  law."^ 


1  City  of  London  v.  Gierke,  Cartli. 
181. 

2  Dorset  v.  Manchester,  3  Verm.  370 ; 
Gibson  v.  Nicholson,  2  S.  &  R.  i22. 


3  2  Ph,  Ev.  13,  60,  and  Note  278  to 
same. 


428 


Chap.  XVI.]  AT  COMMON  LxUV.  2421 


CHAPTER  XVI. 

THE  ASSIGNMENT  OF  JUDGMENT. 

g  421.  At  Common  Law. 

§  422.  May  be  by  Parol. 

§  423.  Older  for  Proceeds. 

§  424.  Partial  Assignment. 

§  425.  Future  Judgments. 

g  42G.  Notice  of  Assignment. 

§  42Ga. Rights  of  Assignee  against  Appignor. 

§  427.  Rights  of  Assignee  against  Defendant. 

§  428.  Rights  of  Assignee  against  Third  Persons. 

§  429.  Prior  Assignment. 

§  430.  Assignment  by  Agent. 

§  430a. Assignee,  no  longer  necessary  party. 

§  431.  Eights  Passing  by  the  Assignmeut. 

§  421.  At  Common  Law. — At  common  law,  tlie  assign- 
ment of  a  judgment  did  not  authorize  the  assignee  to  bring 
an  action  thereon  in  his  own  name.^  The  effect  of  an  assign- 
ment was  merely  to  transfer  an  equitable  title.  To  all 
actions,  therefore,  having  for  their  object  the  subjecting  of 
property  to  the  payment  of  judgments,  the  assignors  were 
necessary  parties  as  holders  of  the  legal  title."  But  the 
assignee,  by  virtue  of  his  equitable  interest.  Lad  the  right 
to  control  the  collection  of  the  judgment,  and  for  that  pur- 
pose to  rise  the  name  of  the  plaintiff,  his  assignor,  and  to 
receive  the  money  collected.^  The  common  law  inhibition 
preventing  the  direct  assignment  and  transfer  of  the  legal 
as  well  as  of  the  equitable  title  to  judgments,  is  no  doubt 
abolished  in  a  majority  of  the  States  of  this  Union;  and  its 
place  has  been  taken  by  statutes  under  which  it  is  not 
merely  the  privilege,  but  also  the  duty,  of  the  assignee  to 
control  and  enforce  the  judgment  in  his  own  name.  If 
a  statutory  mode  of  assigning  judgments  be  provided  this 
does  not  operate  as  an  inhibition  against  all  other  modes  of 


1  Eclmonds  r.  Montgomery,  1  Iowa, 
143;  Eeid  v.  Boss,  15  Incl.  2G5;  Moore 
u.  Ireland,  1  Ind.  531, 


I 


=  Elliot  V.  Waring,  5  Monr.  239. 
on,  G 

429 


3  Weir  V.  Pennington,  G  Eng.  745. 


g  §421-424  LAW  OF  JUDGMENTS.  [Cliaii.  XYI. 

assignment.  It  is  cumulative,  and  does  not  prevent  a  party 
from  making  an  equitable  assignment  in  any  other  lawful 
way,  and  such  assignment  as  to  all  persons  having  notice 
thereof'is  as  effective  as  the  statutory  assignment. 

g  422.  Assignment  by  Parol.  —  AVith  respect  to  its 
assignable  qualities,  a  judgment  is  governed  by  the  rules 
applicable  to  other  clioses  in  action.  The  assignment  need 
not  be  made  under  seal."  Nor  is  it  indispensable  that 
there  should  be  any  written  evidence  of  the  transfer.  ^  The 
rights  of  the  prevailing  party  to  Iris  judgment,  may  be 
transferred  by  a  conveyance  of  the  land  concerning  which 
the  judgment  was  rendered.  Thus  the  grantee  of  a  plaintiff 
who  has  recovered  judgment  for  the  possession  of  real  es- 
tate, having  become  the  real  party  in  interest,  may  main- 
tain proceedings  to  revive  the  judgment.* 

d  423.  Order  for  Proceeds. — But  an  assignment,  whether 
unwritten  or  written,  parol  or  under  seal,  must  indicate  an 
intention  to  transfer  the  title  to  the  property  assigned. 
Therefore,  an  order  on  the  clerk  of  a  court  to  pay  over  to 
"A,"  the  amount  of  a  judgment  held  by  the  drawer,  is  not, 
even  in  equity,  an  assignment.  The  order  cannot,  by  its 
terms,  become  operative  until  the  judgment  is  extinguished 
by  payment.  Therefore,  it  cannot  be  presumed  that  an 
assignment  v\'as  intended.^  An  order  on  the  judgment 
debtor  to  pay  a  sum  less  than  the  judgment,  is  not  an  as- 
signment. It  is  a  mere  evidence  of  indebtedness,  on  which 
the  payee  may  sue  the  drawer,  if  payment  be  not  made.  ^ 

§  424.  Partial  Assignment.  —  Judgments,  like  other 
choses  in  action,  cannot  be  assigned  in  part  without  the 
assent  of  the  debtors,  for  the  reason  that  entire  demands 
cannot,  against  their  objection,  be  split,  for  the  purpose  of 
annoying  defendants. '' 


1  Burgess  v.  Cave,  52  Mo.  43. 

■i  Mitchell  V.  Hockett,  25  Cal.  539  ; 
Ford  V.  Stuart,  19  Johns.  3-12. 

^'  Briggs  V.  Dorr,  19  Johns.  95  ; 
Clark  V.  Moss,  11  Ark.  73li;  Bartlctt 
V.  Yates,  7  Jonen,  G15. 

430 


4  Wright  V.  Parks,  10  Iowa,  342. 
&  Teetor  v.  Abden,  2  Cart.  183. 
6  Thomas  v.  Porter,  3  Bnsh,  177. 
"  Love  V.  Fairfield.  13  Mo.  COO. 


Chap.  XVI.]  NOTICE  OF  ASSIGNMENT.  §^25-426 

g  425.  Future  Judgments.— It  is  no  valid  objection  to 
an  assignment  that  at  the  date  of  its  execution  no  judgment 
existed.  "  The  assignment  carries  the  whole  title  to  the 
subject  matter  of  the  action,  and  of  course  to  the  judgment, 
when  perfected.  As  between  the  parties  to  the  assignment, 
clearly  the  whole  right  passes  to  the  assignee,  and  the  de- 
fendant, the  moment  the  judgment  is  perfected,  becomes 
the  debtor  of  the  assignee  and  not  of  the  nominal  plaintiff."^ 
"Mere  personal  torts,  which  die  with  the  party,  and  do  not 
survive  to  his  personal  representative,  are  not  capable  of 
passing  by  assignment."-  The  character  of  a  chose  in 
action  is  not  changed  by  a  verdict.  ^  If,  therefore,  the 
plaintiff  in  an  action  for  malicious  prosecution,  after  ob- 
taining a  verdict  in  his  favor,  but  before  the  entry  of 
judgment  thereon,  assign  the  verdict  and  the  cause  of  action, 
such  assignment  is  a  nullity.  The  judgment,  when  entered, 
will  not  belong  to  the  assignee;  and  may  be  satisfied  by- 
payment  to  the  plaintiff  or  to  a  sheriff  holding  execution 
against  him.* 

§426.  Of  Notice  of  Assignment.  — We  find  the  rule 
laid  down  in  some  decisions  in  general  terms,  that  "secret 
assignments  cannot  be  allowed  to  entrap  innocent  parties." 
This  rule,  though  manifestly  of  a  very  equitable  character, 
is,  we  think,  hardly  sustained  by  the  reported  decisions.  If 
it  is  strictly  true  in  any  case,  it  is  in  regard  to  the  effect  of 
an  assignment,  without  notice,  upon  the  rights  of  the  judg- 
ment debtor.  It  is  undoubtedly  true  that  if  the  assignee 
give  no  notice  of  the  change  of  ownership  in  the  judgment, 
and  permit  the  assignor  to  control  the  execution,  the  judg- 
ment debtor  will  be  protected  in  all  payments  which  he 
may  make  to  the  apparent  judgment  creditor.^  But  the 
debtor  is  only  protected  from  the  claims  of  the  assignee, 
in  cases  where  he  has  paid  directly  to  the  assignor.     Thus 


^  Hobinson  v.  Weeks,  G  How.  Pr. 
161;  Weire  u.  City  of  Davenport,  11 
Iowa,  49. 

2  Comeggs  V.  Vasse,  1  Pet.  213; 
Ilodgmau  t;.  "Western  U.K.,  7  How. 
P.  492. 

3  Crouch  V.   Gridley,   G   Hill,   250; 


Kellogg  V.  Schuyler,  2  Deuio,  73;  Ex 
parte  Charles,  14  East.  197. 

*  Lawrence  v.  Martin,  22  Cal.  173. 

5  Gaullagher  v.  Caldwell,  22  Penn. 
S.  300;  Page  v.  Benson  22  111.  484; 
Dodd  V.  Brett,  1  Minn.  270. 

431 


g426  LAW  OF  JTDGMENTS.  [Chap.  XVI. 

cases  have  arisen,  both  in  New  York  and  in  California,  under 
statutes  authorizing  the  garnishment  of  debtors  and  the 
payment  by  them  to  the  pkiintiff  in  the  garnishment,  of 
sums  due  from  them  to  the  defendant  therein.  In  each  of 
these  cases,  it  has  been  decided  that  a  payment  made  by 
the  debtor,  after  an  assignment  and  without  any  notice 
thereof,  would  not  protect  him  from  the  claim  of  the 
assignee.'  The  opinion  of  Johnson,  one  of  the  justices  of 
the  Supreme  Court  of  New  York,  in  the  case  of  Robinson  v. 
Weels  (6  How.  Pr.  IGl),  contains  the  most  complete  state- 
ment with  which  we  have  met,  of  the  grounds  upon  which 
these  cases  were  determined.  The  part  disposing  of  this 
branch  of  the  case  is  as  follows:  The  Code,  §  393,  pro- 
vides, that  "after  issuing  of  execution  against  property,  any 
person  indebted  to  the  judgment  debtor  may  pay  to  the 
sheriff  the  amount  of  his  debt,  or  so  much  thereof  as  shall 
be  necessary  to  satisfy  the  execution,  and  the  sheriff's  re- 
ceipt shall  be  sufficient  discharge  to  the  amount  so  paid." 

' '  The  difficulty  in  the  way  of  the  defendant  is  that  at  the 
time  of  making  these  payments  to  the  sheriff,  he  was  not  in 
fact  indebted  to  the  judgment  debtor  whose  debts  he  vol- 
unteered to  pay.  The  nominal  plaintiff  here  had  at  that 
time  no  debt  or  demand  against  the  defendant,  which  he 
could  enforce  at  law  or  in  equity.  It  will  hardly  answer,  I 
think,  to  say  that  as  he  received  no  notice  of  the  assignment, 
he  had  a  right  to  regard  himself  as  the  debtor  of  the  plaint- 
iff, and  is  therefore  to  be  protected.  The  code,  it  is  true, 
authorizes  a  debtor  of  the  judgment  debtor  to  pay  the 
amount  of  his  debt  xc^ow  any  execution  against  the  latter  in 
the  sheriff's  hands;  but  it  does  not  make  it  his  duty  to  do 
so.  It  imposes  no  obligation  on  him  whatever,  and  if  a 
party  indebted,  instead  of  paying  his  debt  to  the  person  to 
whom  he  supposes  himself  indebted,  and  where  he  might 
learn  the  true  state  of  the  matter,  chooses  to  go  and  pay 
another  debt,  which  the  law  does  not  require  him  to  pay, 
and  to  a  person  who  has  no  opportunity  of  knowing  whether 
or  not  he  is  really  the  debtor  of  the  person  whose  debt  he 


1  Brown  r.  Ayres,  33  Cal.  525; 
Countryman  v.  Boyer,  3  How.  Pr. 
386;  Robinson  u.  Weeks,  6  How.  Pr. 

432 


IGl;    Eichardson    v.  Ainswortb,    20 
How.  Pr,  530. 


Chap.  XVI.]  EIGHTS  OF  ASSIGNEE.  §§426-427 

imdertakes  thus  to  satisfy,  I  think  he  does  it  at  his  peril. 
He  must  see  to  it  that  he  pajs  Ids  creditors  debt,  or  the  law 
will  not  protect  him.  He  should  be  regarded  as  a  volun- 
teer, taking  the  risk  of  paying  the  right  debt.  Had  the  de- 
fendant paid  the  nominal  plaintiiT  the  amount  of  the  judg- 
ment and  taken  his  discharge,  without  notice  of  the  assign- 
ment, he  would,  without  doubt,  have  been  protected.  Such 
payment  and  discharge  would  have  been  good  against  the 
assignee  omitting  to  give  notice  of  his  rights.  But  the 
assignee  in  that  case  would  have  had  his  remedy  against 
such  nominal  plaintiff  by  an  action  for  a  breach  of  the  im- 
plied conditions  of  the  assignment.  Here,  however,  the 
party  assigning  has  done  nothing  in  violation  of  the  assign- 
ment.'*^ 

§  426\  Rights  of  Assignee  against  Assignor. — One  who 
makes  an  assignment  of  his  judgment,  incurs  an  obligation 
to  respect  his  own  assignment,  and,  therefore,  to  do  no  act 
inconsistent  with  his  changed  relation  to  the  judgment. 
"A  party  who,  after  having  for  a  valuable  consideration  as- 
signed a  judgment,  satisfies  it,  clearly  -incurs  a  liability  to 
his  assignee.  If  the  satisfaction  price  is  given  on  payment 
of  the  judgment,  the  money  may  be  recovered  by  the  as- 
signee in  an  action  for  money  had  and  received,  and  if  the 
satisfaction  is  given  without  payment,  and  the  assignee  is 
prejudiced  thereby,  he  is  entitled  to  recover  against  his  as- 
signor the  damages  sustained.  In  the  absence  of  proof  to 
the  contrary,  the  presumption  arising  from  a  satisfaction 
price  is  that  it  was  given  on  payment  of  the  judgment."^ 

§  427.  Right-?  of  Assignee  against  the  Parties. — The  as- 
signee of  a  judgment  receives  the  same  subject  to  all  exist- 
ing equities  between  the  parties  thereto;  and  it  is  immaterial 
whether  he  had  notice  of  these  equities  or  not.^  The  as- 
signee, by  virtue  of  the  assignment,  occupies  a  no  better 
position  than  the  judgment  creditor  would  have  occupied, 


1  For  different  view,  see  Dmmm  v. 
Sherman,  20  La.  An.  96. 

'"  Booth  r.  Farmers'  and  Mechan- 
ics' Bank,  50  N.  Y.  399. 

3  Blakesly  v.  Johnson,  13  Wis.  530. 


Scott  V.  Harkins,  32  Geo.  302;  Mc- 
Jilton  r.  Love,  13  111.  480;  Jordan  u 
Black,  2  Murf.  N.  C.  30;  Eobeson  v. 
Roberts,  20  Ind.  155  ;  Kawson  v. 
McJunkiii,  27  Geo.  432. 


(28)  433 


g §427-428  LAW  OF  judgments.  [Chap.  XVI. 

in  the  jibsonce  of  any  assignment.'  If  tlie  assignee  purchase 
property  under  sale  upon  his  own  execution,  he,  like  the 
plaintiff  purchasing  in  such  cases,  is  liable  to  lose  his  title 
by  a  revv°-rsal  of  his  judgment."  The  power  of  the  court  to 
set-off  one  judgment  against  another  is  not  terminated  by 
an  assignment.  "A  purchaser  and  assignee  of  a  judgment, 
even  for  a  valuable  consideration  and  without  notice,  takes 
subject  to  a  right  of  set-off  existing  at  the  time  of  the  assign- 
ment, for  an  assignee  takes  subject  to  all  equitable  as  well 
as  legal  defenses  which  can  be  urged  against  the  assignor."^ 
Where  an  insolvent  judgment  defendant  recovered  a  smaller 
judgment  against  the  plaintiff,  it  was  held  that  the  latter 
had,  €0  instanti,  an  equitable  right  to  set-off  his  judgment 
against  it,  of  which  right  he  could  not  be  defeated  by  an 
assignment.*  However,  there  are  other  cases  directly  an- 
tagonistic to  those  just  cited,  and  which  limit  the  authority 
to  set-off  one  judgment  against  another,  after  assignment 
made,  to  cases  where  it  can  be  shown  that  the  assignor  was 
insolvent  at  the  time  of  the  assignment  of  his  judgment.^ 
But  the  assignee  is  not  prejudiced  by  agreements  inconsis- 
tent with  the  face  of  the  judgment.  Thus,  if  a  party  taking 
a  bond  and  warrant  of  attorney,  agreeing  by  a  separate  in- 
strument not  to  enter  up  judgment,  nor  to  have  it  entered 
up  by  any  other  person,  assign  for  a  valuable  consideration, 
and  without  notice  of  the  agreement,  to  a  third  party  who 
enters  up  judgment,  this  judgment  will  be  held  to  be  good 
and  valid  and  unaffected  by  this  secret  agreement.'' 

§  428.  Rights  of  Assignees  against  third  Persom. — 
The  purchaser  of  a  judgment  stands  in  the  same  position 
as  the  assignee  of  a  note  past  due.  The  holder  of  such  a 
bill  "takes  it  as  a  dishonored  bill,  and  is  affected  by  all 
the  equities  between  the  original  parties,  whether  he  has 
any  notice  thereof  or  not.  But  when  we  speak  of  equities 
between  the  parties,  it  is  not  to  be  understood  by  this  ex- 
pression, that  all  sorts  of   equities   existing   between   the 


1  Northam  v.  Gordon,  23  Cal.  255. 

2  lleynolds  v.  Harris,  M  Cal.  CG7. 

s  Porter  v.  Liscom,  22  Cal.  430; 
Hobbs  V.  Duff,  23  Cal.  50G;  Graves  v. 
Woodbury,  4  Hill,  539, 

434 


*  Merrill  v.  Sowtlier,  6  Dana,  Ky. 
C05. 

5  Henderson  u.  McVay,  32  Ala.  471; 
Davis  V.  Milburu,  3  Iowa,  108. 

CD  avis  V.  liai-r.  9  S.  &  K  137. 


Chap.  XVI.]  RIGHTS   OF   ASSIGNEES.  g428 

parties,  from  otlier  independent  transactions  between  them, 
are  intended,  but  only  such  equities  as  attach  to  the  par- 
ticular bill,  and,  as  between  these  parties,  would  be  available 
to  control,  qualify  or  extinguish  any  rights  arising  there- 
on."^ "The  judgment  is  property  which  may  be  purchased 
like  any  other  property.  The  purchaser  is  bound  to  inquire 
into  the  defenses  of  the  debtor.  He  has  the  means  to  do 
this,  but  he  could  not  be  held  to  inquire  into  the  latent 
equities  existing  in  the  hands  of  third  persons.  The  law, 
.when  it  made  this  sort  of  property  subject  to  sale,  gave  it 
jthe  protection  which  it  extends  to  all  other  property.  Be- 
]fween  ike  'parties,  the  assignee  of  equities  stands  in  the 
place  of  his  assignor,  with  no  better  rights;  but  as  to  the 
claims  of  third  persons,  the  purchaser  of  an  equity  stands 
unaffected  by  frauds  of  which  he  has  no  knowledge,  express 
or  constructive.'"  A  judgment  was  entered  and  a  mortgage 
recorded  on  the  same  day.  The  judgment  creditor  agreed 
•with  the  mortgagee,  that  the  lien  of  the  latter  should  have 
precedence  over  the  judgment  lien.  The  judgment  was 
subsequently  assigned,  for  value  and  without  notice  of  this 
agreement.  On  this  state  of  facts,  it  was  decided  that  the 
assignee  could  not  be  bound  by  this,  nor  any  other  secret 
agreement  in  favor  of  one  not  a  party  to  the  judgment."  The 
courts  of  Vermont,  differing  from  nearly,  if  not  quite,  all 
other  courts,  enforce  against  the  assignees  of  judgments  all 
the  equities  which  could  be  enforced  against  the  assignors, 
whether  in  favor  of  the  parties  to  the  judgment,  or  of  third 
persons.  Thus  in  the  case  of  Downer  v.  Soidh  Roycdton 
Bank  (39  Ver.  25)  the  doctrine  is  asserted  and  applied,  that 
the  vendors  of  choses  in  action  can,  in  no  case,  convey  a 
higher  right  than  they  possess;  that,  therefore,  the  vendee, 
without  notice,  of  a  judgment  held  for  another,  or  subject 
to  the  equitable  rights  of  another,  holds  'such  judgment 
subordinate  to  all  the  equities  to  which  it  was  subject  in 
the  hands  of  the  original  plaintiff.  If,  after  notice  of  the 
assignment,  the  defendant  pay  the  judgment  to  the  plaintiff, 


1  Story  on  Bill,  Sec.  220. 

2  Wright  &  Co.  V.  Levy,  12  Cal.  257; 
Greene  v.  Daily,  5  Mason,  214;  Mur- 
ray u,  Lilburn,  2  John.  Ch.  442. 


3  Hendricksou's  Appeal,  24  Penn. 
S.  3G3. 


435 


§P28-431  LAW  OF  JUDGMENTS.  [Chap.  XVI. 

who  thereupon  enters  satisfaction  on  the  record,  the  entry  may 
be  set  aside  on  application  of  the  assignee.  ^  But  in  the  va- 
cation of  such  entry,  respect  should  be  paid  to  the  rights  of 
third  persons  acquired  while  the  judgment  was  discharged 
of  record.  If  the  assignee,  after  procuring  a  vacation  of 
the  entry  of  satisfaction,  take  out  execution  and  attempt  to 
enforce  it,  he  will  be  enjoined  from  taking  proceedings 
tending  to  impair  the  interests  of  third  ^Dersons  w^ho,  acting 
in  good  faith,  without  notice,  and  after  an  examination  of 
the  records,  acquired  rights  while  it  appeared  on  the  record, 
that  the  jndgment  was  discharged." 

§  429.  Prior  Assignment. — "Between  two  honafide pur- 
chasers of  a  cliose  in  action  not  negotiable,  the  purchaser 
first  in  time  is  prior  in  right."  In  the  purchase  of  a  judg- 
ment the  rule  of  a  caveat  emptor  applies.  If  the  vendor  has 
no  title  the  vendee  can  obtain  none,  though  the  vendor^ 
once  having  title,  has  transferred  it  without  the  knowledge 
of  his  vendee.  ^  This  rule  is  equally  applicable  whether  the 
second  transfer  is  voluntarily  made  by  the  plaintiff,  or  re- 
sults from  a  levy  and  sale  under  execution.* 

§  430.  Transfer  by  Agent. — An  attorney-at-law  has  not, 
by  virtue  of  his  general  authority  as  such,  the  power  to 
assign  his  client's  judgment.  ^ 

§  430\  The  Assignor  having  by  his  assignment  parted 
with  his  interest  in  the  judgment,  is  no  longer  a  necessary 
or  proper  party  to  proceedings  for  the  purpose  of  setting  it 
aside,  or  for  the  purpose  of  enjoining  or  obtaining  other 
relief  from  it.  ^ 

§  431.  Rights  Passing  -with  Assignment. — The  assign- 
ment of  a  judgment  which  was  void  because  in  excess  of  the 
jurisdiction  of  the  court,  has  been  held  to  transfer  the  debt 
for  which  the  judgment  was  entered. "'  And  it  seems  that 
the  assignment  of  a  judgment  necessarily  carries  with  it  the 


1  Warden  v.  Eden,  2  Johns.  Cas. 
258. 

2  Beebe  v.  Bank  of  N.  Y.,  1  Johns. 
528. 

sMitchell  v.  Hockett  v.  25  Cal.  539. 

430 


4Fore  0.  Manlove,  18  Cal.  43G. 
5  Head  v.   Gervais,  1  Walk.  Miss. 
431. 

eEitch  u,  Eichelberger,  13FIa.  1G9. 
1  Brown  u.  Scott,  25  Cal.  189. 


Chap.  XVI.]    EIGHTS  PASSING  WITH  ASSIGNMENT.  §431 

cause  of  action  on  •which  it  was  based. ^  The  assignment  of 
a  judgment,  procured  by  fraud  committed  on  the  assignor, 
does  not  transfer  the  right  of  such  assignor  to  have  the 
judgment  set  aside,  or  to  proceed  to  recover  damages  for 
fraud  or  deceit.  The  assignment  of  the  judgment  is  an 
affirmance  of  the  judgment  by  the  assignor. " 

1  Bolen  V.  Crosby,  49  N.  Y.  183;  J      SBorst  u.  Baldwin,  30  Barb.  180. 
Vila  V.  Weston,  33  Conn.  50.  I 

437 


2432 


LAW  OF  JUDGMENTS.  [Chap.  XVII. 


CHAPTEK  XYH. 

OF  ACTIONS  UPON  JUDGMENTS. 

§  432.  Of  the  Tdght  to  sue  upon  Judgments. 

§  432a.  On  Jud^'ment  against  a  county. 

§  432b.  On  Judgment  -wliere  record  is  lost. 

§  433.  Pendency  of  Appeal. 

§  434.  Actions  on  Decrees. 

§  435.  Defenses. 

§  43G.  Judgments  procured  by  attaching  Property. 

§  437.  Action  must  be  in  name  of  Legal  Owner. 

§  438.  Eight  of  Action  does  not  survive  the  defendant. 

§  439.  Actions  against  Joint  Defendants. 

S  440.  Action  does  not  affect  right  to  execution. 

§  441.  Interest. 

§432.  Of  the  Right  of  Action. — In  Connecticut,  at  a 
very  early  date,  an  action  on  a  judgment  was  not  sustained, 
because  it  was  deemed  unnecessary  and  vexatious,  unless 
plaintiff  succeeded  in  showing  that,  otherwise,  he  could  not 
have  the  full  effect  of  his  judgment.'  This  position  has  since 
been  abandoned  in  the  same  State;  and  in  its  place  the  true 
rule  has  been  adopted,  that  ' '  no  other  reason  "  for  bringing 
the  suit  "need  be  stated  in  the  declaration,  than  that  the 
judgment  remains  unpaid."^  In  Kansas,  the  Supreme  Court, 
in  determining  that  an  action  could  be  sustained  in  that  State 
on  a  domestic  judgment,  said  :  "The  proceeding  seems  ha- 
rassing and  vexatious,  and  to  serve  no  purpose  that  could 
not  be  reached  by  a  more  simple  and  less  costly  method. 
But  these  are  reasons  why  the  law  should  be  changed,  and 
not  that  it  should  bo  disregarded.     When  the  legislature 


1  Welles  V.  Dexter,  1  Eoot,  253,  de- 
cided in  1791.  In  Lower  Canada  it 
has  been  held  that  if  an  action  can  be 
brought,  under  any  circumstances,  on 
a  judgment  in  the  same  court  wherein 
it  was  rendered,  it  must  only  bo  when 
the  defendant  is  about  to  leave  the 
Province   to   defraud   his    creditors. 

438 


Pelliteer  v.  Freer,  11  L.  C.  199.  In 
Upper  Canada  no  action  lies  upon  the 
judgment  of  the  Division  Court.  Don- 
nelly V.  Stewart,  25  Upper  Canada  Q. 
B.  398,  aflS.rming  McPherson  v.  For- 
rester, 11  Id.  3G2. 

2  Dennison   v.   Williams,  4   Conn. 
402  ;  Ives  v.  Finch,  28  Conn.  112. 


Chap.  XVII.] 


RIGHT   OF   ACTION. 


M32 


makes  the  change  this  court  will  cheerfully  enforce  the  law. 
The  question  has  been  settled  under  codes  similar  to  our 
own.'  At  common  law  a  party  has  a  right  of  action  upon  his 
judgment  as  soon  as  it  is  recovered.  This  right  is  neither 
barred  nor  suspended  by  the  issuing  of  an  execution  ;^  .nor 
because,  from  having  the  right  to  take  out  execution,  the 
plaintiff's  action  seems  to  be  unnecessary.-''  A  judgment 
may  be  enforced  by  action,  though  the  right  to  take  out 
execution  has  terminated  by  lapse  of  time.  Thus,  in  Cali- 
fornia, where  the  right  to  execution  continues  only  five  years, 
and  the  judgment  is  liable  to  be  defeated  as  a  cause  of  ac- 
tion at  the  end  of  the  same  period  by  a  plea  of  the  Statute 
of  Limitations,  it  has  been  held  that  though  an  execution 
may  no  longer  be  issued,  the  plaintiff  may  still  maintain  an 
action  on  his  judgment  if  the  defendant  neglects  to  plead  the 
Statute  of  Limitations  against  it.'*  The  plaintiff  may,  at  the 
same  time,  prosecute  an  action  of  debt  to  recover  upon,  and  a 
scire  facias  to  revive  his  judgment.  A  judgment  in  his  favor 
in  the  latter  proceeding  does  not  affect  the  former.  The  judg- 
ment upon  the  scire  facias,  and  that  Upon  the  action  on  the 
judgment,  become  co-existent  securities  for  the  same  debt. 
The  payment  of  either  satisfies  the  other.^  But  no  action 
can  be  sustained  upon  a  judgment  satisfied  on  its  face,  or 
which,  from  the  record,  appears  to  be  satisfied  by  a  levy  un- 
der execution.  The  record  must  be  held  conclusive  until 
avoided  by  some  proceeding  brought  for  that  purpose.^ 
"Where  a  putative  father  was  ordered  to  pay  a  specified  sum 
weekly  to  support  a  child,  it  was  held  that  an  action  of  debt 
would  lie  to  compel  the  payment  of  these  weekly  install- 
ments, and  that,  in  such  action,  the  plaintiff  need  not  show 
that  the  child  still  lives,  nor  that  the  weekly  allowance  is  due. 


^  Burnes  v.  Simpson,  9  Kans.  663, 
citing  Simpson  v.  Cochran,  23  Iowa, 
81;  Ames  u.  Hay,  12  Cal.  11. 

2  Hale  t;.  Angel,  20  Johns.  342 ; 
Smith  V.  Mumford,  9  Cow.  26. 

3  Albin  V.  People,  46  111.  372;  Stew- 
art V.  Peterson,  63  Penn.  S.  230 ; 
Kingsland  &  Co.  v.  Forrest,  18  Ala. 
519  ;  Gardner  v.  Henry,  5  Cold.  458. 
In  Michigan  it  was  held  that  an  ac- 


tion of  debt  could  be  sustained  on  the 
judgment  of  a  Jiastice  of  the  Peace  im- 
mediately after  its  rendition,  though 
by  statute  the  execution  had  been 
stayed.  McDonald  r.  Butler,  3  Mich. 
558. 

■1  Stuart  V.  Lander,  16  Cal.  372. 

5  Carter  v.  Coleman,  12  Ired.  274. 

ePratt  u.  Jones,  22  Verm.  341. 

439 


§^432-433  LAW  OP  judgments.  [Chap.  XVII. 

These   are   defenses   which,    if  they  exist,    the   defendant 
should  set  up.^ 

§  242^.  Action  on  Judgment  against  a  County. — The 
object  of  a  judgment  against  a  county  is  to  obtain  an  au- 
dited demand  wliich  shall  no  longer  be  open  to  contest.  If 
a  statute  provides  that  no  person  shall,  in  any  case,  sue  a 
county  unless  he  has  first  presented  his  demand  to  the 
Board  of  Supervisors  for  allowance,  a  judgment  creditor  of 
the  county  must  present  his  judgment  to  such  Board  and 
have  it  allowed  as  an  audited  demand  within  the  time  pro- 
vided by  law.  On  being  so  allowed  it  will  stand  in  the 
same  position  and  be  subject  to  payment  in  the  same  man- 
ner as  other  audited  demands.  No  action  can  be  sustained 
on  such  judgment;  but  if  the  Board  of  Supervisors  refuse 
to  allow  the  judgment  when  properly  presented  to  them,  they 
may  be  compelled  to  do  so  by  a  writ  of  mandate. " 

d  432".  Lost  Record. — According  to  some  of  the  au- 
thorities  no  action  can  be  sustained  upon  a  lost  record. 
The  record  must  first  be  restored  by  a  direct  proceeding  for 
that  purj)Ose,  ' '  for  the  reason  that  if  its  existence  is  put  in 
issue,  the  court  passes  upon  it  by  an  inspection  of  the 
record. "3  But  the  reason  here  assigned  for  the  rule  is  not 
sound.  It  is  true  that  when  the  existence  of  a  record  is  put 
in  issue,  the  courts  ordinarily  determine  such  issue  by  in- 
specting the  alleged  matter  of  jecord.  But  we  think  the 
authorities  heretofore  cited  clearly  establish  the  rule,  that 
a  record  may  be  proved  by  parol  when  the  original  is  shown 
to  have  been  lost  or  destroyed  ;4  and  we  therefore  believe 
that  an  action  ought  to  be  and  can  be  sustained  on  a  lost 
or  destroyed  record. 

§  433.  Pending  Appeal. — The  pendency  of  an  appeal 
does  not  suspend  the  plaintiff's  righ^  of  action  upon  his 
judgment,  unless  the  defendant  gives  a  sufficient  bond  to 
stay  proceedings.  5     In   Massachusetts,    after  appeal,    the 


1  stokes  V.  Sanborn,  45  N.  H.  274. 

2Alclen  u.  County  of  Alameda,  43 
Cal.  270. 

3Foulk  V.  Colburn,  48  Mo.  230; 
"Walton  V.  McKesson,  64  N.  C.  77. 

440 


*  See  Sec.  40T. 

5  Taylor  v.  Shew,  39  Cal.  536;  Suy- 
dam  V.  Hoyt,  1  Dutch.  230. 


Chap,  xvir] 


IXEFENSES. 


§§433-435 


judgment  "no  longer,  in  legal  construction,  remains  in 
force,  and  cannot  be  the  foundation  of  a  new  action. "^  The 
pendency  of  an  appeal  cannot  be  proved  by  parol  evidence.  ^ 
If  the  defendant  bring  a  writ  of  error,  and  the  plaintiff 
bring  an  action  on  his  judgment  and  recover,  he  cannot,  it 
is  said,  sue  out  execution  on  his  second  judgment  until  the 
writ  of  error  is  determined.  ^ 


§  434.  Upon  Decrees. — In  the  earlier  stages  of  the  com- 
mon law,  its  courts  and  judges  were  not  willing  to  notice 
the  decrees  of  the  courts  of  chancery,  nor  to  render  any 
assistance  in  carrying  them  into  effect.  They  could  not, 
therefore,  be  enforced  by  action.*  In  England,  the  right  of 
action  upon  domestic  decrees,  founded  on  equitable  con- 
siderations, is  still  denied  on  the  ground  that  they  can  be 
enforced  by  appropriate  process.  5  But  as  to  foreign  and 
to  colonial  decrees  no  such  objection  exists;  and  they  may, 
whenever  they  direct  the  payment  of  any  sum  specified  with 
certainty,  be  regarded  as  good  considerations  for  an  action 
of  assumpsit. 6  In  the  United  States,  "We  lay  it  down  as 
a  general  rule  that  in  every  instance  in  which  an  action  of 
debt  can  be  maintained  upon  a  judgment  at  law  for  a  sum 
of  money  awarded  by  such  judgment,  the  like  action  can  be 
maintained  upon  a  decree  in  equity,  which  is  for  an  ascer- 
tained and  specific  amount,  and  nothing  more;  and  that  the 
record  of  the  proceedings  in  the  one  case  must  be  ranked 
with  and  responded  to  as  of  the  same  dignity  and  binding 
obligation  with  the  record  of  the  other."''  The  same  rules 
are  applicable  to  actions  on  the  decrees  of  surrogates.  ^ 

§  435.     Defenses. — It  follows,   as   a  matter,  of  course, 
from  the  conclusive  effect  given  to  every  final  adjudication, 


1  Campbell  v.  Howard,  5  Mass.  37G; 
Paine  v.  Cowdiu,  17  Pick.  142. 

'■i  Blodgett  V.  Jordan,  6  Verm.  580. 

sBenwell  v.  Black,  3  T.  E,.  643. 
Williams  v.    Preston,   3  J.  J.  M. 
600;  Hugh  V.  Higgs,  8  Wheat.  697. 

5  Carpenter  v.  Thornton,  3  B.  & 
Aid.  52;  Henly  v.  Soper,  8  B.  &  C. 
IG. 

6  Sadler  v.  K<:.bins,   1  Camp.  253; 


Henderson  v.  Henderson,  6  Ad.  &  El. 
N.  S.  288. 

"Pennington  v.  Gibson,  16  How. 
U.  S.  65;  Post  V.  Neafie,  3  Cat.  22; 
Tilfourd  &  Co.  v.  Oakley,  Hemp.  197; 
Nations  v .  Johnson,  24  How.  U .  S. 
203;  Evans  v.  Tatem,  9  S.  &  R.  252; 
Warren  v.  McCarthy,  25  111.  95. 

8  Dubois  V.  Dubois,  G  Cow.  494. 

441 


"|435  LAW  OP  JUDGMENTS.  [Chap.  XVII. 

that,  to  an  action  upon  a  judgment  or  decree,  no  defense 
should  be  entertained  which  might  have  been  interposed  to 
defeat  the  original  action.^      Thus,  no  proof  can  properly 
be  received  for  the  purpose  of  showing  that,  prior  to  the 
entry  of  the  judgment,  part  of  the  claim  was  paid.     Nor  in 
a  suit  upon  a  promissory  note,  given  in  satisfaction  of  a 
judgment,  will  any  evidence  be  admitted  to  impeach  the 
consideration  for  the  note  by  proving  that,  prior  to  the 
judgment,  part  of  the  cause  of  action  was  paid.  ^    An  action 
upon  a  recognizance   against   bail,   was  defended   on   the 
ground  that  the  plaintiff  in  the  original  suit  was  persuaded 
to  consent  to  the  judgment  against  him  while  in  a  state  of 
intoxication,  procured  by  the  plaintiff.     This  defense  was 
held  to  be  concluded  by  the  former  adjudication,  on  the 
ground  that  every  matter  which  might  have  been  \irged  was 
finally  disposed  of  by  the  judgment.     But  the  further  de- 
fense, that  the  judgment  was  entered  by  collusion  between 
the  parties  to  the  former  action,  for  the  purpose  of  defraud- 
ing the  bail,  being  made,  was  held  to  be  a  good  answer  in 
favor  of  the  bail,  both  at  law  and  in  equity.  ^     So  far  as  this 
decision  denied  the  efficacy  of  the  defense  that  the  judg- 
ment was  obtained  by  intoxication  of  the  defendant,  brought 
about  by  the  plaintiff,  its  correctness  may  well  be  doubted. 
While  the  defendant  was  bound,  under  ordinary  circum- 
stances, to  present  all  his  defenses,  he  ought  to  have  been 
exonerated  from  the  consequences  of  any  neglect  procured 
and  induced  by  any  device  of  his  opponent  designed  and 
executed  to  secure  an  unconscionable  advantage.     Where, 
as  under  the  Code,  law  and  equity  are  administered  by  the 
same  tribunals,  and  the  disposition  of  the  entire  contro- 
versy between  parties,  in  one  action,   is  intended   to  be 
encouraged,  such  fraud  as  would  entitle  a  party  to  relief 
from  a  judgment  upon  application  to  chancery,  constitutes 
a  good  defense  to  an  action  on  such  judgment."^    Whenever, 
by  proceedings  in  scii^e  facias,  or  by  action,  a  judgment  is 


^  Hay  ward  v.  Ribbans,  4  East.  311; 
Biddle  v.  Wilkins,  1  Pet.  092;  Ellis  v. 
Clark,  19  Ark. 420;  Crawford  u.  Exr's 
of  Simmouton,  7  Porter,  110. 

2  Bird  V.  Smith,  34  Maine,  63. 

442 


sParkliurst  v.  Sumner,  23  Verm, 
538. 

4  Dobson  V.  Pearce,  12  N.  Y.  156; 
Carneal  v.  Wilson,  3  Litt.  80;  Whet- 
stone V.  Whetstone,  31  Iowa,  276 


Chap.  XVII.]       JUDGMENTS  PROCUTvED,  ETC.  §^435-436 

sought  to  be  used  to  the  detriment  of  a  third  person,  he 
may  avoid  its  effect  bj  showing  that  the  plaintiff  and  de- 
fendant in  the  former  action  colluded  together  and  thereby 
procured  the  judgment  for  the  purpose  of  defrauding  liim.^ 
The  defendant  is  as  conclusively  bound  by  the  decision 
of  any  question  of  law  as  he  is  by  the  finding  upon  any 
issue  of  fact.  If  the  judgment  be  erroneous,  his  only 
remedy  is  by  appeal.  ^  One  who  is  proceeded  against  for 
his  disobedience  of  an  injunction,  or  of  any  order  of  a 
court,  is  never  permitted  to  justify  his  conduct  by  showing 
error  of  the  court  in  making  its  order  or  judgment.  He 
must  either  show  that  he  did  not  disobey  the  order,  or  that 
the  court  had  no  jurisdiction  to  make  it.  ^  Because  it 
necessarily  involves  an  attack  upon  the  correctness  of  a  for- 
mer adjudication,  and  would  tend  to  encourage  infinite  liti- 
gation, the  defendant,  in  an  action  upon  a  judgment  is  never 
permitted  to  show  that  it  was  procured  by  perjury.* 

A  judgment  such  as  the  court  was  competent  to  pronounce, 
"  cannot,  in  an  action  therein  in  our  courts,  be  imperiled 
by  a  citizen  or  foreigner,  by  averment  and  proof  that  the 
court  had  not  jurisdiction  of  the  person  of  the  defendant."^ 

If  a  judgment  be  either  so  irregular  that  it  should  be  set 
aside  on  motion  or  reversed  on  appeal,  it  is  nevertheless 
valid  until  so  vacated  or  reversed,  and  an  action  may  there- 
fore be  sustained  thereon.^ 

§  436.  Judgments  procured  by  Attachment. — Judg- 
ments obtained  by  means  of  attaching  property,  do  not 
generally  create  a  personal  liability,  but  are  limited  in  their 
operation  to  the  property  attached.  They  are,  therefore,  at 
least  outside  of  the  States  where  pronounced,  commonly 
considered  as  not  constituting  any  cause  of  action  against 
the  defendant. '^ 


^  Hhilipson  v.  Earl  of  Egremont,  6 
Ad.  &  El.  N.  S.  587;  Fowler  v.  Kick- 
erby,  2  M.  &  G.  7G0. 

sHawes  v.  Hathaway,  14  Mass.  233. 

3  People  V.  Sturtevant,  9  N.  Y.  263. 

*  Demeritt  v.  Lyford,  7  Foster,  541. 


5  Miller  ^.  Dungan,  35  N.  J.  Law, 
391. 

'^  Townsend  v.  Cox,  45  Mo.  401. 

'  Easterly  v.  Goodwin,  35  Conn.  273. 
Kane  u  Cook,  8  Cal.  449;  McDonald's 
Succession,  24  La.  An.  352;  Banta  v. 
Wood,  32  Iowa,  473. 

443 


2 §437-441 


LAW  OF   JUDGMENTS. 


[Chap.  XVII. 


§  437.  Action  must  be  in  nam®  of  Legal  O-wner. — 
Every  action  upon  a  judgment  must  be  brought  in  the  name 
of  its  legal  owner.  If  the  judgment  be  entered  in  favor  of 
A.  for  the  use  of  B.,  the  latter  cannot  maintain  a  suit  thereon 
in  his  own  name.  He  must  use  the  name  of  A.  in  whom  the 
legal  title  is  vested.^ 

§  438.     At  Common  Lavr,  a  Judgment  does  not  survive 

the  defendant  against  whom  it  is  rendered.  Jjy  no  mode 
known  to  that  law,  can  a  judgment  be  enforced  against  the 
administrator  of  a  deceased  debtor.  As  to  him  its  charac- 
ter as  a  judgment  is  fundus  officio.^ 

§  439.  Defenses. — The  plaintiff  in  an  action  on  a  judg- 
ment must  recover  against  all  of  the  defendants  or  none. 
Whatever  constitutes  a  good  defense  for  one  of  the  defen- 
dants operates  for  the  benefit  of  the  others,  because  the 
obligation  is  joint.  ^  That  a  judgment  is  enjoined,  is  a  com- 
plete defense  to  any  action  upon  it.*  The  commitment 
of  defendant  to  prison  under  execution  does  not  discharge 
an  action  pending  on  the  judgment.  ^ 

g  440.  The  plaintiff  is  entitled  to  execution  on  his  judg- 
ment, notwithstanding  the  pendency  of  an  action  upon  it.  ^ 

§  441.  Interest. — At  common  law,  judgments  did  not 
draw  interest.  In  an  action  on  a  judgment  of  a  sister  State, 
the  common  law  will,  in  the  absence  of  any  showing  to  the 
contrary,  be  presumed  to  prevail  in  that  State,  and  no  in- 
terest will  be  allowed.''  By  some  State  statutes  judgments 
carry  interest  whether  the  original  indebtedness  did  or  not.^ 


1  Triplett  v.  Scott,  12  111.  137. 

'■^  U.  S.  V.  Cushman,  2  Sumner,  310. 

3  Pratt  V.  Dow,  5G  Maine,  81. 

4  Blair  v.  Caldwell,  3  Mo.  353. 

6  Moor  V.  Towle,  38  Maine,  133. 


6  Gushing  v.  Arnold,  9  Met.  23;  Moor 
V.  Towle,  38  Maine,  133. 

'i  Thompson  v.  Monrow,  2  Gal.  99. 

8  Harrington  v.  Glenn,  1  Hill,  S.  0. 
79. 


444 


Chap.  XVIII.]  JUDGMENT  ON.  gg442-443 


CHAPTEK  XVIII. 

PEOCEEDINGS  BY  SCIRE  FACIAS. 

§  442.  Definition  of. 

§  443.  Judgment  on. 

§  444.  Not  a  New  Suit. 

§  445.  Defenses  inconsistent  ■with  the  Judgment. 

§  446.  Pleadings  in. 

§  447.  "Variance. 

§  448.  Parties  Bound  by. 

§  449.  Who  are  Terre-Tenants. 

§  442.  Definition, — "A  scire  facias  is  a  writ  founded  on 
some  matter  of  record,  as  a  recognizance  or  judgment,  etc., 
on  which  it  lies  to  obtain  execution,  or  for  other  purposes,  as 
to  repeal  letters  patent,  hear  errors,  etc.  In  general  it  is  a 
judical  writ  issuing  out  of  a  court  where  the  record  is, 
yet,  because  the  defendant  may  plead  thereto,  it  is  con- 
sidered in  law  an  action ;  therefore  a  release  of  all  actions 
is  a  good  bar  to  a  scireJaciasJ'^  "A  scire  facias  is  a  judicial 
writ  issued  for  the  purpose  of  substantiating  and  carrying 
into  effect  an  antecedent  judgment."^ 

§  443.  Judgment  on. — The  judgment  which  may  be  ren- 
dered for  the  plaintiff  on  scire  facias,  is  not  a  new  judgment 
for  the  amount  of  the  original  debt,  damages  and  costs. 
The  entry  should  be  ' '  that  plaintiff  have  execution  for  the 
judgment  mentioned  in  the  said  scire  facias  and  his  costs. "^ 
The  practice  in  Pennsylvania  is  different.  There  scire  facias 
is  not  a  mere  judgment  that  execution  issue,  but  a  new 
judgment  for  a  greater  sum  than  the  old  one.  The  new 
judgment  is  a  lien  on  lands  not  bound  by  the  old  one.  It 
seems  also  to  merge  the  original  judgment,  so  that  if  a 
second  scire  facias  is  desired,  it  can  only  be  obtained  on  the 
first  scire  facias,  and  not  on  the  original  judgment.* 


1  Tidd's  Pr.  1090. 

2jarvis  v.    Eathbone,   Kirby's  E. 
220;  Denegre  v.  Haun,  6  lo-wa,  240. 


sVredenberg  v.  Snyder,  6  Iowa,  39; 
Woolston  V.  Gale,  4  Halst,  N.  J.  32. 
4  Custer  V.  Detterer,  3  W.  &  S.  28. 

445 


§§444-446  LAW  OF  judgments.  [Chap.  XVIII. 

§  444.  Is  not  a  Ne^w  Suit. — A  scire  facias  to  revive  a  judg- 
ment is  not  a  new  suit,  but  the  continuation  of  an  old  one.  ^ 
It  is  in  form,  but  not  in  fact,  a  separate  action.  Therefore 
satisfaction  of  the  original  judgment  is  a  satisfaction  of 
the  scire  facias.  The  reversal  of  the  original  judgment  has 
the  same  effect  on  the  scire  facias."  Being  a  judicial  writ, 
a  scire  facias  must  pursue  the  nature  of  the  judgment.  If 
the  judgment  be  joint,  the  scire  facias  must  also  be  joint.  ^ 
It  must  also  be  issued  from  the  court  having  the  record  on 
which  it  is  founded.  Hence  bail  cannot  be  proceeded 
against  on  scire  facias  in  the  court  where  the  suit  was  com- 
menced, if  the  judgment  was  pronounced  in  the  Superior 
Court.* 

§  445.     Defenses    Inconsistent   with   Judgment. — The 

principles  of  estoppel  attached  to  final  adjudications,  are  as 
operative  and  as  conclusive  in  proceedings  on  scire  facias  as 
in  any  other  cases.  No  defense  can  be  made  which  existed 
anterior  to  the  judgment.-^  The  defendant  cannot  show,  on 
scire  facias  to  revive  a  judgment,  that  the  note  for  which  it 
was  rendered  was  paid  before  the  rendition  of  the  judg- 
ment, '^  or  had  ceased  to  be  the  property  of  the  plaiijtitf. '' 
The  rule  that  nothing  admissible  aS  a  defense  in  the  original 
action,  is  admissible  against  proceedings  on  scire  facias, 
is  confined  to  the  parties  and  their  privies,  and  does  not 
operate  to  the  prejudice  of  strangers.^  In  Massachusetts, 
a  judgment  charging  an  alleged  trustee  on  his  default  in  the 
original  action,  has  never  been  regarded  as  conclusive 
against  him.  He  might  always,  on  scire  facias,  introduce 
proof  to  show  that  he  was  not  in  fact  chargeable.  ^ 

§  44G.  Pleading. — The  approved  j)recedents  show  that, 
in  scire  facias,  it  is  not  essential  to  aver  that  no  execution 
has  been  issued  within  the  year  and  a  day.     The  common 


'  Denegre  v.  llaun,  13  Iowa,  240; 
Fitzhugli  V.  Blake,  2  CrancL.  C.  C. 
37;  Hopkins  v.  Howard,  12  Tex.  7. 

2  EldreduHazletfsAdmr.,  38Penn. 
S.  16. 

3  Carson  v.  Moore,  23  Tex.  450; 
Austin  V.  rioynolds,  13  Tex.  544. 

44G 


^  Osgood  V.  Thurston,  23  Pick.  110. 
5  Bowen  v.  Bonner,  45  Miss.  10. 
fi  Camp  V.  Baker,  40  Geo.  148. 

7  Koon  V.  Ivey,  8  Ricli.  Law,  37. 

8  Griswold  v.  Stewart,  4  Cow.  45D. 
3  Brown  v.  Neale,  3  Allen,  74. 


Chap.  XVIII.]  PARTIES  BOUND  BY.  §^446-448 

averment  is,  "That,  although  judgment  aforesaid,  inform 
aforesaid,  is  given,  execution  nevertheless  for  the  debt  and 
damages  aforesaid,  remains  to  be  made  to  him,"  the  plaint- 
iff. The  averment  that  said  judgment  remains  unsatisfied 
and  unpaid,  is  good  in  substance.^ 

§  447.  Variance. —If  the  recitals  in  the  scire  facias 
point  to  the  Judgment  sought  to  be  revived,  with  such  cer- 
taint}^  that  the  defendants  are  informed  what  judgment  is 
intended,  it  is  sufficient.  If  there  be  an  exact  coincidence 
of  names  of  parties,  of  the  court,  of  the  debt  and  amount  of 
the  judgment,  and  t)f  its  having  been  entered  on  an  award, 
there  can  be  no  doubt  of  the  identity  of  the  judgment  re- 
cited, and  that  oflered  in  evidence,  though  the  judgment  in 
respect  to  the  costs,  was  not  recited  in  the  scire  facias.'^ 

§  448.  Parties  bound  by. — In  Penns3-lvania,  the  writ  of 
scire  facias,  if  sued  out  for  the  purpose  of  continuing  the 
lien  of  a  judgment,  must  be  served  on  the  terre-tenants,  or 
occupants,  of  the  land,  if  there  are  any.  If  any  of  the  terre- 
tenaiits,  or  occupants,  are  not  made  parties,  the  proceeding, 
as  to  them,  has  no  effect  on  the  lien.^  Proceedings  in  the 
same  State  on  scire  facias  have  been  held  to  be  inoperative 
against  a  party  who  was  neither  ql  terr'c-tenant  nor  a  claimant 
under  a  title  which  was  ever  subject  to  the  lien.  Thus,  a 
purchaser  of  land  prior  to  any  judgment  against  the  owner, 
being  subsequently  summoned  as  terre-tenant,  made  default, 
and  judgment  thereon  was  entered  against  him.  This  was 
held  not  to  estop  him  from  setting  up  his  title  against  that 
of  the  purchaser  at  a  sale  under  the  judgment  on  the  sci7'e 
facias,  and  showing  that  instead  of  being  a  terre-tenant,  he 
held  by  title  paramount  to  the  judgment.  The  reasoning 
on  which  this  decision  was  founded,  was  that  the  statute 
only  authorized  the  svimmoning  of  the  terre-tenant,  and  that 
the  summoning  of  another  person,  be^g  unauthorized,  was 
void.^ 


1  Albin  V.  State,  4G  111.  372. 

MViird  V.  Prather's  A.dm,,  1  J.  J. 
M.  4. 

sBrown  u.  Simpson,  2  Watts,  233. 

4  Drum  V.  Kelly,  34  Penn.  S.  415: 
affirmiDg  Kiebner  v.  Watts,  1  Harris, 


38;  Mitchell  v.  Hamilton,  8  Barr.  486; 
Helfrinck's  Aj^peal,  3  Harris,  382,  and 
overruling  Hinds  v.  Jacobs,  1  Penn. 
S.  iry2;  Kiehuer  v.  Dengler,  1  Watts, 
424;  Minier  v.  Saltmarsb,  5  Watts, 
293. 

447 


§449  LAW  OF  JUDGMENTS.  [Chap.  XVIII. 

§  449.  Terre-Tenants. — In  Maryland,  upon  the  decease 
of  a  sole  judgment  defendant,  execution  may  be  had  by 
suing  out  scire  facias  against  the  heirs  and  terre-tenants, 
without  making  the  personal  representative  a  party .^  ' '  Who 
are  terre-ten^mts  within  the  meaning  of  the  law,  whom  it  is 
necessary  to  make  parties  to  scire  facias?  All  who  are  in 
possession,  deriving  title  under  the  judgment  debtor,  such 
as  heirs,  devisees,  alienees  after  the  judgment.  They  are 
in,  as  of  the  estate  of  the  judgment  debtor,  and  before  judg- 
ment can  be  revived  and  enforced  by  execution  against  the 
land,  so  as  to  divest  their  title,  it  is  necessar}'  to  warn  them 
by  the  scire  facias,  so  that  they  may  have  an  opportunity  of 
making  their  defense,  and  of  claiming  contribution  from 
others  holding  land  of  the  judgment  debtor,  bound  by  the 
judgment.  Where  a  party  is  in  possession,  holding  title 
adverse  to  that  of  the  defendant,  or  paramount  to  his,  such 
party  is  not  a  terre-tenant,  within  the  meaning  of  the  law, 
because  his  rights  are  in  no  manner  affected  by  the  judg- 
ment. If  he  has  a  good  title  the  judgment  does  not  bind 
his  land,  nor  can  a  sale  under  the  execution  affect  his  in- 
terest. One  who  purchased  the  lands  at  a  tax  sale,  and 
went  into  possession  is  not  a  terre-tenant.  If  the  sale  was 
valid  the  purchaser  held  a  title  paramount  to  the  judgment, 
and  not  to  be  affected  by  the  proceedings  under  the  execu- 
tion. If  the  sale  was  invalid,  then  the  purchaser  was  in 
possession  without  title  under  the  judgment  debtor,  and 
not  as  his  terre-tenant."^ 

»  Tessier  v.  Wyse,  9  Bland,  40.         I     2  Polk  v-  Pendleton,  31  M'd,  118. 

448 


Chap.   XIX.]  PLEADING,    GENERAL  FORM.  §450 


CHAPTEE  XIX. 

OF  PLEADING  JUDGMENTS. 

PART  I 

§  450.  General  Form. 

§  451.  Plea  must  correspond  in  dignity  with  the  Judgment. 

PART  II.— AVERMENTS  OF  JURISDICTION. 

§  452.  Of  Courts  of  Record. 

§  453.  Of  Courts  of  Record  in  other  Countries  and  States. 
§  454.  Of  Courts  of  limited  and  special  Jurisdiction. 
§  455.  Of  Pleas  to  the  Jurisdiction. 

PART  III.— DESCRIBING  JUDGMENTS. 

§  456.  Great  particularity  required. 
§  457.  Variance. 

PART  IV.— PLEAS  OF  DEFENSE. 

§  458.  General  Issue. 

§  459.  NiU  Tid  Record. 

§  4G0.  Of  former  Adjudication. 

PART  V. 

§  4G1.  Pleas  of  Judgments  in  other  States. 

g  450.  Pleading,  General  Form. — As  every  judgment  is 
conclusive  on  the  parties  while  it  remains  in  force,  it  is  not 
necessary  in  asserting  it  as  a  cause  of  action  or  of  defense, 
to  aver  any  of  the  anterior  proceedings  or  considerations  on 
which  it  is  based.  The  approved  precedents  of  declara- 
tions upon  judgments  state  the  date  or  term  at  which  the 
judgment  was  recovered,  the  court  in  which,  and  the  place 
where,  it  was  rendered,  and  the  amount  which,  by  the  con- 
sideration of  the  court,  the  plaintiff  has  recovered.  Though 
the  complaint  be  by  an  assignee,  no  demand  for  payment 
need  be  averred.^  Neither  is  it  essential  to  state  that  the 
judgment  is  still  in  full  force  or  virtue,  or  that  it  remains 
unsatisfied,  or  that  it  is  still  the  property  of  the  plaintiff. 
It  is  sufficient  to  allege  that  the  sum  named  is  still  due."    A 

1  Mass  V.  Shannon,  1  Hilt.  175.        I     '■'  Blake  v.  Burley,  9  Iowa,  592. 

(29)  449 


g ^450-452  LAW  or  judgmexts.  [Chap.  XIX. 

judgment  in  favor  of  an  administrator  is  assets  in  his  hands. 
He  need  not,  in  suing  upon  it,  describe  himself  as  admin- 
istrator, nor  to  aver  the  issuing  of  letters  of  administration. 
His.  right  to  sue  and  his  official  capacity  have  passed  in  rem 
jud'icatam?  So  in  an  action  against  a  stockholder,  based 
upon  a  judgment  against  the  corporation,  it  is  unnecessary 
to  aver  the  nature  of  the  indebtedness  out  of  which  the 
judgment  arose.- 

§  451.  Pleas  Adapted  to  Dignity  of  Judgment. — The 
actions  which  may  be  brought  upon  judgments,  and  the 
pleas  which  may  be  made  in  such  actions,  depend  upon  the 
character  and  dignity  of  the  judgment  in  controversy.^  If 
the  judgment  sued  upon  is  a  record,  the  action  must  be  in 
debt,  and  the  plea  must  be  nut  tiel  reconl.  The  proceedings 
of  Courts  of  Chancery  are  not  records,*  therefore  nul  tiel 
record  is  a  bad  plea  to  an  action  upon  a  decree.  **  Judg- 
ments of  justices  of  the  peace  are  generally  considered  as 
mattei's  not  of  record,  and  are  therefore  declared  upon  in 
assumpsit  instead  of  in  debt.  ^  But  in  some  of  the  States 
they  are  treated  as  records,  and  must  be  sued  upon  as  such.  ■" 

PAET  II.— AVERMENTS  OP  JUEISDICTION. 

§  452.  Jurisdiction  of  Courts  of  Record. — From  the 
w^ell  known  rule  that  courts  of  superior  or  general  jurisdic- 
tion are  presumed  to  act  by  right  and  within  the  authority 
conferred  upon  them  by  law,  it  follows  that  their  judgments 
and  decrees  are  in  all  cases  of  at  leixsi  prima  facie  validity.  In 
asserting  such  a  judgment  or  decree  as  a  cause  of  action,  or  as 
a  ground  of  defense,  the  plaintiff  need  state  no  jurisdictional 
facts.  According  to  the  opinion  reported  in  a  Kentucky 
case,  ^  "  it  is  sufficient  to  state  briefly  that  the  plaintiff  im- 
pleaded the  defendant,  and  b}'  the  consideration  of  the  court 
recovered  judgment,  etc."     In  Vermont,  it  has  been  said 


iBiddle  v.  Wilkins,  1  Pet.  692; 
Cra-wford  v.  Whittal,  Doug.  4,  note  A; 
Talmadgo  v.  Chapel,  IG  Mass.  71. 

2  Miller  c.  White,  57  Barb.  504. 

3  Mills  V.  Duryee,  7  Cranch.  481. 

*  Doughty  V.  Fawn,  Yelv.  22G;  Co. 

450 


Litt.  2G0;  Duller 's  Nisi  Prius,  245;  1 
Gilbert's  Law  of  Ev.,  49. 

'•>  Evans  v.  Tatem,  9  S.  &  R.  252. 

«  Green  u.  Fry,  1  Cranch.  C.  C.  137. 

~'  Bain  v.  Hunt,  3  Hawks,  N.C. 572. 

8  Caldwell  v.  Fachards,  2  Bibb. 331; 
Burnes  v.  Simpson,  9  Kaus.  G63. 


Chap.    XIX.]    COURTS   OF  SPECIAL  JURISDICTION.        §§452-45-1 


tliat  enough  of  the  prerious  proceedings  should  be  stated  to 
show  that  the  parties  were  properly  in  court,  and  that  the 
subject  matter  of  the  controversy  was  such  as  the  court  had 
authority  to  determine;  and  that,  for  this  purpose,  a  mere 
statement  that  the  defendant  being  summoned  or  attached 
"with  the  common  form,  taUtcr  processium  est,  is  ordinarily 
sufficient."^  But  in  so  far  as  these  cases  indicate  that  it  is 
essential  to  aver  anything  whatever  to  show  the  jurisdiction 
of  courts  of  record,  they  are  not  sustained  by  the  authori- 
ties. It  is  the  settled  practice  "  to  allege  generally,  that  the 
plaintiff,  by  the  consideration  and  judgment  of  the  court  re- 
covered the  sum  mentioned."-  "It  was  long  ago  settled 
that,  in  j)leading  a  judgment,  it  is  unnecessary  to  show  by 
averment  that  the  court  had  jurisdiction."  ^  The  averment 
that  "  the  judgment  was  duly  entered,"  is  sufficient.  "  The 
presumption  of  law  is  conclusive  that  al]  the  requisite  prior 
proceedings  were  had  in  the  case,  till  the  contrary  appears. 
Proceedings  in  the  United  States  District  Court  under  the 
bankrupt  act  form  no  exception,"  * 

§  453.  Courts  of  the  Sister  States,  and  of  Poreign 
Countries. — The  presumptions  in  favor  of  jurisdiction  are 
the  same  whether  the  judgment  relied  upon  is  domestic, 
foreign,  or  of  one  of  the  sister  states  of  this  union.  It  is, 
therefore,  only  essential  that  the  judgment,  if  pronounced 
in  another  state,  be  averred  to  have  been  duly  rendered.  ^ 
The  same  rule  is  applicable  to  a  foreign  judgment.  If  the 
court  had  no  jurisdiction,  that  fact  should  be  raised  by  the 
defendant's  plea. " 

§  454.  Courts  of  Special  Jurisdiction. — "It  is  sufficient 
to  state  the  judgment  concisely,  even  though  it  were  recov- 


1  Downer  v.  Dana,  22  Verm.  337. 

sChittyPl.  354;  Biddle  v.  Wilkius, 
1  Pet.  G8G. 

sSpaulding U.Baldwin,  31  lud.  376; 
Sogers  V.  Odell,  39  N.  H.  452;  Pen- 
nington V.  Gibson,  16  How.  T35; 
Butcher  v.  Bank  of  Brownsville,  2 
Kansas,  70;  Holmes  u.  Campbell,  12 
Minn.  221;  Judge  v.  Fillmore,  1  Chip. 
423. 

4Latlirop  V.  Stuart,  5  McLean,  1G7. 


cPteid  V.  Boyd,  13  Tex.  241;  Bissell 
a.  Wheeloch,  11  Gush.  277;  Stephens 
t'.Robj',  27  Miss.  744;  Williams  r. 
Preston,  3  J.  J.  M.  600;  Wheeler  v. 
Raymond,  8  Cow.  311.  For  contra 
view,  see  Ashlej"-?;.  Laird,  14Ind.  222; 
Kurns  v.  Kunkle,  2  Minn.  313;  Smith 
V.  Millikeu,  2  Minn.  319. 

GEobertson  v.  Struth,  5  Q.  B.  941; 
2  Chitty  PI.  243-4. 

451 


^io-L  LAW  OF  JUDGMENTS.  [Cllfip.    XIX, 

ered  in  an  inferior  court  not  of  rctjord."'  It  is  necessary  to 
show  that  tlie  court  had  jurisdiction  over  the  person  and  the 
subject  matter.  And  the  general  allegation  that  the  court  had 
jurisdiction  is  not  sufficient.  The  facts  upon  which  the 
jurisdiction  depends  must  be  stated.  But  it  is  no  longer 
essential  that  the  proceedings  be  set  forth  at  large.  It  is 
enough  to  state  the  facts  conferring  jurisdiction,  and  then 
say  taliter  processium  fuit,  the  judgment  Avas  rendered.  The 
exception  to  this  rule  is  where  plaintiff  in  an  action  has 
been  subjected  to  costs,  in  which  case,  having  brought  the 
suit,  he  is  liable  under  the  judgment  whether  the  court  had 
jurisdiction  or  not.^  In  declaring  on  a  justice's  judgment 
rendered  in  a  suit  commenced  by  summons,  alleged  to  be 
duly  issued  and  served,  it  is  unnecessary  to  aver  that  the 
summons  was  returned,  or  that  it  specified  a  particular  hour 
for  the  appearance  of  the  defendant,  or  that  the  court  was 
held  at  the  time  and  place  named  in  the  summons,  or  that 
the  sum  sued  for  was  within  the  jurisdiction  of  the  court,  or 
that  the  defendant  resided  in  the  county.  The  service  of 
process  in  the  county  makes  a  case  of  prima  facie  juris- 
diction. ^ 

Many  of  the  States  have  passed  statutes  in  which  it  is 
provided,  that  in  pleading  the  judgment  or  determination 
of  a  court  of  special  jurisdiction,  the  facts  conferring  juris- 
diction need  not  be  stated;  but  that  the  "averment  that  the 
judgment  or  determination  was  duly  given  or  made  shall  be 
sufficient."*  This  statute  is  not  complied  with  by  alleging 
that  "a  judgment  was  entered  in  said  action."  Though  it 
probably  is  not  essential  that  the  precise  words  of  the  stat- 
ute be  employed,  they  cannot  be  substituted  by  words  not 
having  the  same  effect.  The  word  ''duly''  seems  to  be  in- 
dispensable.^ The  answer  in  a  suit  upon  a  promissory  note 
set  up  the  defendant's  discharge  by  virtue  of  a  decree  in 
imolvency.  A  demurrer  being  interposed  on  the  ground 
that  the  answer  did  not  show  that  the  note  was  included  in 


1  Chitty  PI.,  vol.  1,  p.  370. 

2  Tumor  v.  Koby,  3  Comst.  193. 
*  Barnes  r.  Harris,  4  N.  Y.  375. 

^  $  59,  Cal.  Pr.   Act;  §  450,  Cal.  C. 
C.  P. ;  Keys  v.   Granuis,  3  Nev.  548; 

452 


Crake  v.  Crake,  18  Ind.  156;  Eicharcl- 
son  V.  Hickman,  22  Ind.  244  ;  ^  1G9, 
C(xleof  N.Y. 

5  Hunt  V.    Dutcher,    13   IIovv.    Pr. 
538. 


Chap.    XIX.]        DESCRIPTION  OF  JUDGMENTS.  §§454-456 

tlie  defendant's  schedule,  tlie  court  held  that  the  allegation 
that  a  judgment  had  been  duhj  made  and  rendered  discharg- 
ing defendant  from  the  demand  sued  upon,  was  sufficient,  and 
that,  whether  the  demand  was  included  or  not  was  a  matter 
to  be  determined  at  the  trial  by  inspecting  the  record.  ^ 
This  provision  of  the  statutes  has  been  decided  to  be  in- 
applicable to  foreign  judgments.  ~  But  in  Indiana,  at  least, 
it  is  applied  to  judgments  rendered  in  any  of  the  sister 
States.  ^ 

§  455.  Plea  to  the  Jurisdiction. — A  plea  to  the  juris- 
diction of  a  court  of  general  jurisdiction  must  set  forth  the 
facts  showing  want  of  authority  in  the  court  which  rendered 
the  judgment,  and  must  be  certain  in  every  particular.  If, 
by  any  reasonable  intendment,  the  facts  alleged  can  exist, 
and  the  court  at  the  same  time  have  jurisdiction,  the  plea 
is  bad.*  This  principle  has  been  applied  to  foreign  judg- 
ments in  several  instances  by  the  English  courts.  Thus,  a 
plea  that  defendant  was  not  served  with  process  issuing  out 
of  the  said  court,  nor  had  he  any  notice  of  such  process, 
nor  did  he  appear  in  said  suit,  was  held  bad  on  demurrer, 
because  it  did  not  show  that  no  process  issued,  nor  that  de- 
fendant Avas  not  summoned  so  as  to  have  a  full  opportunity 
for  defense.^  The  showing  of  a  party  that  at  the  time  the 
suit  was  commenced  and  down  to  the  termination  of  it,  he 
was  not  only  absent  from  the  place,  but  had  no  one  there 
to  represent  him  or  on  whom  any  process  could  be  served, 
is  sufficient  to  avoid  the  2')rima  facie  evidence  of  a  foreign 
judgment."  But,  according  to  another  English  case,  this 
showing  would  not  be  sufficient,  because  it  does  not  directly 
state  that  defendant  was  not  a  subject  oi  or  domiciled  in 
the  county  where  judgment  was  rendered.' 

PAET  III.— DESCEIPTION  OF  JUDGMENTS. 

§  456.  "In  averring  matters  of  record,  great  particularity 
should  be  observed.     Any  misstatement  in  the  description 

1  Hanscom  v.  Tower,  17  Cal.  518. 

2  Hollister  v.  HoUister,  10  How.  P. 
539;  McLaughlin  v.  Nichols,  13  Abb. 
Pr.  244. 

3  Crake  v.  Crake,  18  Ind.  156. 
*  Diblee  v.  Davison,  25  lU.  486, 


5  Reynolds  v.  Fenton,  3  C.  B.  1S7. 

6  Smith  V.  NichoUs,  5  Bing.  N.  C. 
208;  see  also  Ferguson  v.  Mahon,  3 
P.  &D.  143. 

'  Cowan  V.  Braidwood,  9  Dowl.  27. 


453 


g458  LAW   OF   JUDGMENTS.  [Cliap.  XIX. 

of  a  record  in  pleading  is,  as  a  general  rule,  fatal  to  such 
pleading.     The  averments  and  proof  must  be  identical."  ' 
The  jjrecise  words  of   the  record   need   not   bo   followed. 
"Surplusage,  or  immaterial  omissions  not  matters  of  sub- 
stance, are  attended  with  no  other  consequences  than  in 
other  cases.     As  to  matters  of  description,  it  is  otherwise, 
and  there  the  record  produced  must  conform  strictly  to  the 
plea.     It  has  been  considered  that  if  any  circumstances  de- 
scriptive of  the  record  be  untruly  stated,  though  they  were 
not  necessary  to  be  stated  at  all,  it  will  be  fatal  on  mil 
tiel  record.     This  is  because  the  issue  puts  in  question  the 
identity  of  the  record  set  up  as  evidence  of   the  former  re- 
covery.    The  party  to  a  suit,  by  pleading  a  record  with  a 
-proid  patet,  proffers  that  issue,  and  it  is  incumbent  on  him 
to  maintain  it  literally;  this  as  well  where  the  averment  has 
reference  to  particulars  which  need  not  be  specifically  stated 
upon  the  record  as  to  those  which  must  be  so.'"''     In  de- 
scribing a  judgment,  the  court  in  which  it  was  rendered,  ^ 
the  place  where  the  court  was  held,^  the  names  of  the  par- 
ties, the  date  or  term  at  which  it  was  entered,  and  the  sum 
recovered  must  be  shown.  ^     Action  was  brought  against  L. 
B.  and  E.  his  wife,  upon  a  Judgment  alleged  to  have  been 
recovered  against   her  while  she  was  unmarried,   by  the 
name  of  E.  R.,  to  which  the  plea  of  nul  tiel  record  was  inter- 
posed.    The  judgment  when  offered  in  evidence,  Avas  ob- 
jected to  because  against  E.  R.  and  others,  instead  of  E.  R. 
alone.     The  court  held  that,  if  the  defendants  desired  to 
take  advantage  of  the  non-joinder  of  athers,  they  could  do 
so  only  by  a  plea  in  abatement.     That,  in  this  case,  there 
was  no  variance  because  there  was  a  judgment  against  E. 
B  ;  and  that  an  action  of  debt  on  a  judgment  is  not  differ- 
ent in  principle  from  the  ordinary  case  of  an  action  of  debt 
against  several  joint  contractors,  in  which  case,  objections 


1  Lawrence  v.  Willoughby,  1  Minn. 
87;  Chitty  PI.  Vol.  2.  p.  482-3,  and 
notes . 

2  ■Whitaker  t\  Bramson,  2  Paine  C. 
0.  209.  For  instances  of  cases  regard- 
ing fatal  and  non-fatal  variances,  see 
case  just  cited ;  also  Barringer  v.  Boyd, 
27  Miss.  473;  Central  Bankv.  Veasey, 

454 


14  Ai-k.  672;  Chitty 's  PI.  Vol.  2,  p. 
4S3,  and  notes;  Few  v.  Blackliouse, 
1  W.  W.  and  11. 658;  Billing  v.  Hitch- 
ings,  18  L.  J.  Rep.  (N.  S.)  Ex.  192. 

3  Packard  v.  Hill,  7  Cow.  434. 

*  Duyckinck  u.  Clinton  Ins.  Co,,  3 
Zabr.  279. 

i  Chitty's  PL  Vol.  2,  p.  483, 


Chap.  XIX. J  GENERAL  ISSUE.  gg456-458 

cauuot  be  taken  on  the  ground  of  variance,  but  only,  if  at  all, 
by  way  of  plea  in  abatement/  A  different  construction  pre- 
vails in  Georgia."  But  where  the' declaration  averred  a 
judgment  against  A.  and  B.,  and  the  record  put  in  evidence 
showed  a  judgment  rendered  in  another  state  upon  service 
on  A.  alone,  under  the  "joint  debtor  act,"  it  was  held  that 
the  judgment  was  valid  against  A.  only;  and  that  the  de- 
scription of  it  as  being  against  A.  and  B.,  was,  therefore, 
a  fatal  variance.  ^ 

§  457. — Variance. — The  misdescription  of  a  judgment  in 
regard  to  the  term  at  which  it  was  rendered  is  said  not  to 
be  fatal  where  the  record  is  set  up  as  mere  matter  of  in- 
ducement, as  in  case  for  a  false  return. -^  In  South  Caro- 
lina, at  an  early  day,  it  was  decided  that  want  of  a  writ  and 
of  a  copy  of  the  cause  of  action,  blanks  in  the  declaration, 
and  a  clerical  error  as  to  date  of  rendition,  are  none 
of  them  fatal  objections  to  a  judgment  on  plea  of  nul  tiel 
record,  because  sufficient  appears  to  show  that  a  judgment 
was  entered  as  alleged  in  the  pleadings.  ^  But  a  less  liberal 
rule  prevails  elsewhere  in  regard  to  matters  of  description. 
Such  matters  must  be  literally  proved.  Under  allegation 
of  judgment  at  December  term,  1830,  proof  cannot  be  ad- 
mitted showing  judgment  at  December  term  1831,  nor  will 
judgment  of  August  17  be  admissible  under  allegation 
of  August  16.  ^  There  must  be  an  identity  of  sound  between 
the  names  of  the  parties  as  stated  in  the  pleadings,  and  the 
names  of  the  parties  as  shown  in  the  record  offered.  An 
averment  of  judgment  against  Barnard  Hj'singer  is  not 
supported  by  a  production  of  a  record  against  Barcnt  Hy- 


senger.' 


PART  IV.— DEFENCES. 


§  458.   General  Issue.— A  defendant,  sued  upon  a  demand, 
may,  under  the  plea  of  the  general  issue,  show  that  such 


1  Cocks  V.  Brewer,  11  M.  &  W.  51. 
^  Howell  V.  Shancls  &  Co.,  35  Geo. 
66. 

3  Smith  V.  Smith,  17  111.482. 

4ChittyPl.  230,  note  c. 

SFarrar  v.  Carmichael,  1  Brev.  392. 


6  Howard  v.  Cousins,  7  How.  Miss. 
114;  Gulick  v.  Locler,  2  Green,  N.  J. 
572. 

TDuncommuu  v.  Hysinger,  14  111. 
249. 

4oo 


5458-459 


LAW  OF  JUDGMENTS. 


[Chap.  XIX. 


demand  is  merged  in  a  former  judgment.  ^  We  have  already, 
in  another  chapter,  considered  the  authorities  bearing  on  . 
the  question  whether  a  former  adjudication,  put  in  evidence  ^ 
under  the  general  issue,  is  conclusive  upon  the  court  or 
jury  "  It  appears  to  be  certain  that  a  judgment  was  admis- 
sible under  the  general  issue  in  actions  in  assumpsit,"  case/ 
and  trover,''  but  was  not  in  trespass  and  covenant.''  Under 
the  code  a  judgment  cannot  be  given  in  evidence  as  a 
former  recovery  under  the  general  issue.  It  must  be  speci- 
ally pleaded."  Under  the  general  issue  {nil  dehet),  in  an  action 
on  a  judgment  rendered  in  another  State,  the  defendant  may 
show  that  the  court  had  no  jurisdiction  to  render  the  judg- 
ment.^ Ordinarily  an  officer  is  protected  by  an  execution 
fair  on  its  face,  and,  therefore,  on  being  sued  for  levying 
upon  and,  selling  property  need  not  aver  the  existence  of 
the  judgment.  But  if  the  property  was  such  as  by  law  is 
exempt  from  execution,  except  for  purchase  money,  and 
the  defendant  wishes  to  prove  that  he  levied  under  execu- 
tion upon  a  judgment  for  purchase  money,  he  must  aver 
in  his  answer  the  existence  and  consideration  of  the  judg- 
ment.^ 

§  459.  Nul  Tiel  Record. — This  is  the  only  proper  plea 
to  call  in  question  the  existence  of  the  judgment  as  stated 
in  the  pleading  of  the  party  by  whom  it  is  brought  forward. 
The  non-existence  of  the  judgment,  or  a  variance  in  its 
statement  in  the  declaration,  must  be  taken  advantage  of 
by  this  plea.^"  It  involves  two  questions;  one  of  fact  and 
the  other  of  law.     The  first  is  whether  such  a  record  as  is 


^  Wan-eu  v.  Comings,  6  Cush.  103; 
Marsh  v.  Pier,  4  Rawle,  273;  Mason 
V.  Eldred,  6  Wall.  231. 

2  Sec  §  284.  A  judgment  whenever 
properly  admitted  in  evidence  under 
the  pleadings,  is  as  conclusive  as  if 
specially  pleaded.  Gavan  v.  Graydin, 
41  Ind.  5G9. 

3  Stafford  v.  Clark,  1  Carr  &  P.  403; 
Reynolds  v.  Stansbury,  20  Ohio,  344; 
Stafford  v.  Clark,  9  Moore,  724;  2 
Bing.  377. 

4  1  Chitty  PI.  491. 

5  Miller  v.  Mauice,  6  Hill,  11. 

456 


6  1  Chitty  PI.  488,491,  506;  Coles  v. 
Carter,  G  Cow.  G91. 

'  Piercy  v.  Sabin,  10  Cal.  22;  Hend- 
ricks V.  Dicker,  35  Barb.  298;  Brady 
V.  Murphy,  19  Ind.  258;  Atkins  v. 
Hudson,  19  Ind.  392. 

s  Foster  v.  Glazener,  27  Ala.  391 ; 
Bissell  V.  Briggs,  9  Mass.  462 ; 
Stephens  v.  Gaylord,  11  Mass.  206. 

9  Dennis  v.  Snell,  54  Barb.  411. 

I'^Jackette  v.  Huguuou,  2  McL.  129; 
Lincoln  v.  Tower,  2  McL.  473;  Craw- 
ford V.  Ex'rs  of  Simonton,  7  Porter, 
110. 


Cliap.    XIX.]  FORMER  ADJUDICATION. 


J§459-460 


alleged  in  fact  exists.  The  second  is  what  judgment  should 
be  pronounced  if  the  record  is  proved  as  alleged.'  If  the 
record  j)roduced  shows  that  the  court  did  not  have  juris- 
diction of  either  the  person  of  the  defendant,  or  the  sub- 
ject of  the  controversy,  it  must  be  disregarded."  "As  this 
plea  only  goes  to  the  existence  of  the  record,  the  defendant 
must  plead  payment,  or  any  matter  in  discharge  of  the 
action. "«  Hence,  if  in  an  action  on  the  judgment  of  a 
sister  State,  the  executions  are  put  in  the  record  and  show 
a  levy  upon  personal  property,  this  levy  and  the  satis- 
faction thei-eby  produced,  cannot  be  taken  advantage  of 
under  the  plea  of  nul  tiel  record,"^  "But  if  a  recovery  be 
pleaded  in  bar,  and  the  judgment  afterwards  reversed  before 
the  day  given  to  bring  in  the  record,  then,  upon  nul  tiel 
record  the  issue  must  be  found  for  the  plaintiff;  because  by 
the  reversal  the  record  is  avoided  ah  initio.''"^  Under  this 
plea  the  defendant  cannot  prove  aliunde,  that  the  parties 
or  the  cause  of  action  was  different  in  the  former  suit. «  The 
plaintiff  to  entitle  himself  to  a  recovery,  under  this  plea, 
must  produce  a  record  Avhich  does  not  appear,  when  pro- 
duced, to  be  satisfied. ' 

§  460.  Former  Adjudication. — A  plea  of  foraier  recov- 
ery should  show  that  some  question  involved  in  the  former 
judgment  is  identical  with  some  issue  in  the  present 
action;^  that  the  former  action  and  the  present  were  be- 
tween the  same  parties  or  their  privies ;»  and,  in  case  the 
parties  are  not  nominally  the  same,  facts  showing  their 
privity  with  the  parties  to  the  present  action  must  be 
stated.^"  ■  The  plea  of  former  judgment,  as  a  defense  to  an 
action  of  ejectment,  should  show,  in  addition  to  the  facta 


1  ]\Iaule,  J.,  in  Bradley  v.  Gray,  3 
C.  B.  7-2G. 

-Thomi^son  v.  Emmert,  4  McL,  96; 
Berger  v.  Williams,  i  McL.  125. 

-  Tidd's  Pr.  651. 

*  Stephens  v.  Eoby,  27  Miss.  744; 
Tunstall  v.  Eobinson,  Hempstead, 
229. 

5  Tidd's  Pr.745,  citing  7  Ld.  Eaym, 
274;  2  Ld.  Eaym,  1014;  2  Salk.  329,  S. 


C;  see  also  Kinsey  u.  Ford,  38  Barb, 
195. 

6  State  Bank  v.  Arnold,  7  Eng.  180. 

'  Blair  v.  Caldwell,  3  Miss.  353. 

8  Hopkinson  v.  Shelton,  37  Ala.  306 
Lock-wood  V.  Wildman,  13  Ohio,  450 
Heatherly  v.  Hadly,  2  Oregon,  269 
Johnson  v .  "White,  13  S.  &  M.  487. 

9  Greely  v.  Smith,  1  W.  &  M.  181. 
"Greely  v.  Smith,  3  W.  &  M-  236; 

Goddard  v.  Benson,  15  Abb.  Pr.  19L 
457 


§PG0-461 


L.\.W  OF   JUDGMENTS. 


[Cliap.  XIX. 


that  the  parties  to  the  two  actions  and  the  lands  in  con- 
troversy are  the  same,  that  the  title  of  the  parties  in  issue  in 
the  first  action  is  the  same  title  in  issue  now.^     But  in 
Ohio,  in  actions  in  relation  to  personalty,  it  is  sufficient  to 
state  a  prior  recovery  to  have  been  between  the  same  parties, 
for  the  same  property,  without  averring  that  it  was  for  the 
same  conversion.  2     A  plea  of  judgment  recovered  in  the 
court  of  a  foreign  country,  must  show  that,  the  judgment  is 
final  and  conclusive  between  the  parties  in  the  place  where 
it  was  rendered.^     "  When  the  record  of  a  former  judgment 
is  set  up  as  establishing  some  collateral  fact  involved  in  a 
subsequent  controversy,  it  must  be  pleaded  strictly,  as  an 
estoppel,  and  the  rule  is,  that  such  a  pleading  must  be  framed 
with  great  certainty,  as  it  cannot  bo  aided  by  an  intend- 
ment.    Technical  estoppels,   as  contended  by  defendants, 
must  be  pleaded  with  great  strictness,  but  when  a  former 
subject  is  set  up,   in  bar  of  an  action,  or  as  having  deter- 
mined the  entire  merits  of  the  controversy,  it  is  not  required 
to  be  pleaded  with  any  greater  strictness  than  any  other  plea 
in  bar,  or  any  plea  in  avoidance  of  the  matters  alleged  in 
the  antecedent  pleading  of  the  party."* 

PAKT  V. 

§  461.  Judgments  of  the  Sister  States. — It  is  now  well 
settled  that  the  judgment  of  a  court  of  record  of  any  of  the 
States  must  bo  treated  as  cc  record  in  every  other  State  both 
by  the  plaintiff  in  his  declaration^  and  by  the  defendant  in 
his  plea.'^  "  Pleas  in  bar  of  suits  commenced  on  judgments 
of  sister  States  must  deny,  by  clear  and  positive  averments, 
every  fact  which  would  go  to  show  jurisdiction,  whether 
with  reference  to  the  person  or  the  subject  matter."  "^     An 


^  Vance  v.  Oliuger,  27  Cal.  358. 

sEversole  v.  riauk,  17  Ohio,  Gl. 

sPlummer  v.  Woodburne,  4B.  &  C. 
625;  Fmyes  v.  Worms,  10  C.  B.  N.  S. 
149. 

4 Aurora  City  v.  West,  7  Wall.  82; 
Gray  v.  Pingry,  17  Verm.  419;  Per- 
kins I'.  Walker,  19  Verm.  114. 

5  Garland  u.  Tucker,  1  Bibb.  3G1; 
McKim  V.  Odoni,   3  Fairf.  94;  India 

458 


Rubber  Co.  v.  Hoit,  14  Verm.  92; 
Andrews  v.  Montgomery,  19  Johns. 
102. 

6 Evans  v.  Tatem,  9  S.  &  E.  252; 
Davis  V.  Lane,  2  Carter,  548;  Mills  i;. 
Duryee,  7  Crauch,  481;  2  Am.  Lead. 
Cases,  4th  ed.  791. 

•JLatterett  u.  Cook,  llowa,  1;  Mou- 
lin V.  Insurance  Co.,  4  Zabr.  222; 
Shumway  v,  Stillwell,  4  Cowen,  292. 


Cliap.    XIX.]      JUDGMENTS  OF  SISTER  STATES. 


J461 


answer  to  an  action  on  a  judgment  of  a  court  of  record  of 
another  State,  is,  therefore,  insufficient,  if  it  states  only 
that  the  defendant  was  a  non-resident,  and  had  no  notice 
of  the  action,  without  expressly  showing  that  he  did  not 
appear  by  person  nor  by  attorney.'  Where  the  defendant 
pleaded  that  he  was  never  within  the  State,  that  he  never  had 
any  notice  of  the  suit,  and  never  appeared  therein,  a  repli- 
cation "that  said  judgment  was  not  recovered  against  de- 
fendant without  his  knowledge  and  without  notice  to  him 
in  manner  and  form  as  in  said  plea  alleged,"  was  held  to  be 
good.^  But  this  case  seems  hardly  consistent  wdth  Long  v. 
Long,  1  Hill.  597.  There  the  replication  alleged  that  de- 
fendant was  personally  duly  notijied,  according  to  the  rules 
and  practice  of  that  court  and  the  law  of  that  State.  It  was 
held  to  be  "bad  in  substance.  It  states  that  the  defendant 
was  '  personally  duly  notified, '  but  not  of  the  process,  the  ac- 
tion, or  anything  else  in  particular.  He  had  due  notice ; 
but  of  what  ?  The  pleader  has  stopped  short  of  the  conclu- 
sion at  which  he  seems  to  have  been  aiming.  If  due  notice 
of  the  process  or  action  had  been  alleged,  I  should  still 
think  the  replication  bad  in  substance,  as  well  as  in  form. 
Due  notice  may  sometimes  be  appropriate  words  in  a  plead- 
ing, but  when  the  inquiry  is  whether  a  court  has  obtained 
jurisdiction  of  the  person  of  the  defendant,  the  allegation 
that  he  was  'personally  notified'  does  not  belong  to  legal 
language.  The  averment  should  be  that  lie  was  served  with 
process  to  appear  and  answer,  or  that  he  appeared  in  the 
action  either  in  person  or  by  attorney."^  In  declaring  upon 
the  judgment  of  a  justice  of  the  peace  of  another  State,  it 
must  be  alleged  that  the  statutes  of  that  State  gave  the  jus- 
tice jurisdiction  of  the  subject  matter  of  the  suit.'*  "A  gen- 
eral averment  of  jurisdiction  is  not  enough.  The  statute 
giving  jurisdiction  to  the  justice,  and  the  existence  of  the 
jurisdictional  facts  required  by  such  statute,  must  be 
pleaded. 


"5 


1  Fosterer  v.  Glazener,  27  Ala.  391; 
Starbuck  v.  Murray,  5  Wend.  liS; 
Struble  v.  Malone,  3  Clarke,  58G. 

2  Buchanan  v.  Port,  5  Ind.  261. 

3  Long  V.  Long,  1  Hill.  597. 


4  Thomas  v.  Robinson,  3  Wend.  367. 

'=  Sheldon  v.  Hopkins,  7  Wend.  435  ; 
Grant  v.  Bledsoe,  20  Tex,  456  ;  Eeal 
V.  Smith,  14  Tex.  305. 

459 


g462  L.^-W  OF  JUDGMENTS.  [Cliap.  XX. 


CHAPTEE  XX. 

SA-TISFACTION  OF  JUDGMENTS. 

PART  I.— BY  PAYMENT. 

§  4f)2.  To  -whom  made. 

§  4C3.  How  made. 

§  464.  Presumptiou  of  Payment. 

§  405.  Time  as  Evidence  of  Payment. 

S  466.  Paid  Judgment. 

§  467.  Payment  of  another  Judgment  for  the  same  Demand. 

PAET  II.— PAYEE'S  EIGHT  TO  SUBEOGATION. 

§  4G8.  Payment  by  a  Stranger. 

§  4C9.  Payment  by  an  Officer. 

§  470.  Payment  by  a  Surety. 

§  471.  Payment  by  an  Indorser. 

§  472.  Payment  by  a  Co-Defendant. 

§  473.  Payment  partly  by  Co-Defendant  and  partly  by  Third  Persoru 

PiVET    III.— SATISFACTION    BY   PEOCEEDINGS    UNDEE    EXECU- 
TION. 

g  474.  By  Levy  on  Lands. 

§  475.  By  Levy  on  Personal  Property. 

§  476.  By  Discharge  of  Defendant  from  Custody. 

i  477.  Suspension  while  Defendant  is  in  Custody, 

§  478.  Sale  under  Execution,  and  Vacation  of  Satisfaction  produced  thereby. 

§  478a.  Vacation  of  Satisfaction. 

S  479.  Other  Means  of  Satisfaction. 

PAET  IV. 

§  480.    Proceedings  after  Satisfaction. 

PAET  I.— BY  PAYIMENT. 

2  462.  To  -whom  Payment  may  be  Made.  — Payment 
will,  of  course,  operate  as  a  release  if  it  be  made  to  tlie 
plaintiff,  or  to  any  person  authorized  by  liim,  or  by  law, 
to  receive  it.  If  there  bo  more  than  one  plaintiff,  a  pay- 
ment to  either  will  discharge  the  entire  judgment.  ^  If, 
however,  it  be  shown  by  the  record,  or  be,  by  any  means, 
brought  to  the  knowledge  of  the  debtor,  that  the  judgment 

1  Erwin  v.  Eutherford,  1  Yerg.  169. 

4G0 


Chap.  XX.]      TO   WHOM  PAYMENT  MAY  BE  MADE.  §462 

was  recovered  for  the  use  of  another  than  the  plaintiff,  it  can 
only  be  satisfied  by  payment  to  the  real  party  in  interest.^ 
So,  if  the  judgment  be  assigned,  the  plaintiff  is  no  longer 
a  proper  person  to  receive  payment;  and  a  payment  to 
him  thereafter  does  not  extinguish  the  judgment  if  it  can 
be  shown  to  have  been  made  with  notice  of  the  assignment. 
Direct  notice  to  the  defendant  is  not  essential  to  secure  the 
rights  of  the  assignee.  It  is  sufficient  if  it  can  be  shown 
that  the  former  had  information  given  in  such  terms  and 
under  such  circumstances  as  were  well  calculated  to  arrest 
his  attention.^  If  an  officer  having  authority  in  his  official 
capacity  to  receive  payments  of  judgments,  receive  money 
to  pay  the  debt,  before  judgment  when  he  has  no  authority 
to  receive  it,  and  he  retain  the  money  until  after  judgment, 
and  then  write  on  the  record  the  word  ' '  settled, "  this  will 
be  held  to  indicate  an  intention  to  hold  the  money  in  his 
official  capacity  and  will  be  regarded  as  a  satisfaction  of  the 
judgment.^  An  attorney-at-law  retained  to  prosecute  a  de- 
mand has,  by  virtue  of  that  retainer,  the  authority  to  receive 
payment  of  the  judgment,  when  recovered.  Until  the  de- 
fendant has  notice  of  a  revocation  of  this  authority,  he  will 
be  entitled  to  the  credit  of  all  payments  made  to  the  attor- 
ney.* The  relation  of  a  prochein  ami  to  the  action  is  that  of 
an  officer  of  the  court,  specially  appointed  to  enforce  and 
preserve  the  rights  of  the  infant  in  whose  behalf  he  acts. 
He  may  employ  an  attorney,  carry  the  suit  on  to  judgment; 
and  may,  if  there  be  no  regularly  constituted  guardian  of 
the  infant,  receive  the  money  recovered  of  the  defendant, 
and  thereupon  may  enter  a  valid  satisfaction  of  the  judg- 
ment.'' The  attorney  who  is  employed  by  the  ^prochein  ami 
to  prosecute  the  suit,  is  thereby  authorized  to  receive  pay- 
ment of  the  judgment,  and  to  enter  satisfaction  thereof 
when  such  payment  is  made. 


6 


iTriplett'.  Scott,  12  111.  137;  Hod- 
son  V.  McConnel,  12  111.  170. 

SGuthrie  v.  Baskline,  25  Penu.  S. 
80. 

sGovernor  v.  Read,  38  Ala.  254. 

4:Harper  i'.  Harvey,  4West  Va.  539; 
Yoakum  v.  Tildeu„  3  West  Va.  167; 
Wilkinson  &  Co.u.  Holloway,  7  Leigh, 
277. 


5  White  V.  Hall,  Moor,  852;  Morgan 
V.  Tuoru,  7  Mus.  &  W.  400;  Collins 
V.  Brook,  4  H.  &  N.  270;  S.  C.  5,  H. 
&  N.  700;  S.  C.  29,  L.  J.  Ex.  259;  S. 
C.  6,  Jur.  N.  S.  999. 

GBaltimore  &  0.  R.E.  Co.  v.  Fitz- 
patrick,  3G  Md.  G24. 

461 


a4G3 


LAW  OF  JUDGMENTS. 


[Chap. 


§  4G3.  How  Payment  may  be  r/Iade. — The  plaintiff 
may  accept  payment  in  any  manner,  or  in  any  kind  of  cur- 
rency; and  having  once  accepted  currency,  note,  check  or 
any  other  article  of  value  as  a  substitute  for  a  legal  tender, 
cannot  revoke  his  acceptance  and  enforce  payment  in 
money.'  Whether  the  plaintiff  is  bound  by  an  agreement, 
under  which  he  obtains  part  payment  through  his  promise 
to  satisfy  the  whole  judgment,  is  a  disputed  question.  On 
the  one  side  it  is  insisted,  that  the  agreement  to  discharge 
any  portion  in  excess  of  the  payment,  is  a  nxidmn.  pactum, 
and  cannot  therefore  extinguish  the  entire  judgment.^  On 
the  other  side,  it  is  affirmed,  with  great  confidence,  that  the 
plaintiff  cannot  retain  the  fruits  of  his  compromise,  and,  at 
the  same  time,  enforce  his  judgment  as  to  the  part  agreed 
to  be  released.  •'  But  a  satisfaction  under  seal  is  good  though 
full  payment  were  not  made.*  An  attorney  at  law  has,  by 
virtue  of  his  general  retainer,  no  authority  to  satisfy  a  judg- 
ment without  payment  of  the  full  amount  in  7noney.  If  he 
compromise  by  taking  less  than  the  entire  sura  due,  or  by 
receiving  anything  else  than  monoj,  the  plaintiff'  is  not  bound 
by  the  compromise.^  In  England,  the  retainer  and  author- 
ity of  an  attorney  cease  at  the  entry  of  the  judgment;  and 
he  cannot,  by  virtue  of  any  implied  authority  arising  from 
his  previous  relation  to  the  case,  make  a  binding  agreement 
to  stay  the  execution,  nor  affect  a  valid  compromise  of  the 
judgment."  But  if  he  be  employed  after  judgment  to  con- 
duct proceedings  to  enforce  satisfaction  thereof,  such  em- 
ployment authorizes   him   to   bind   his   client   by  a   com- 


1  Lyon  V.  Northrop,  17  Iowa,  314i 
Weston  V.  Clark,  37  Mo.  572;  Wither- 
ly  V.  Maun,  11  Johns.  518;  Ives  v. 
Phelps,  IG  Minn.  451. 

sDeland  v.  Hiett,  27  Cal.  611;  Gar- 
vey  V.  Jarvis,  54  Barb.  179. 

»Eeia  V.  Hibbard,  G  Wis.  175. 

4Beers  v.  IleLdiickson,  45  N.  Y. 
665. 

sGarthwaits  v.  Wontz,  19  La.  An. 
196;  Lewis  r.  Woodruff,  15  How.  P. 
539;  Benedict  v.  Smith,  10  Pai.  12G; 
Beers  v.  Hendriekson,  45  N.  Y.  665; 
Jackson  v.   Bartlett,   8  Johns.    3G1; 

462 


Wilkinson  &  Co.  v.  Holloway,  7  Leigh, 
277;  Wakeuian  v.  Jones,  1  Cart.  517; 
Chapman  v.  Cowles,  41  Ala.  103; 
Jones  f.  Eansom,  3  Ind.  327:  Abbe  v. 
Hood,  6  McL.  107;  Jewett  v.  Ward- 
leigh,  32  Maine,  110;  VaiJ  v.  Conant, 
15  Verm.  314;  Lewis  v.  Gramage,  1 
Pick.  347;  Smock  v.  Dale,  5  Hand. 
639;  McCarver  v.  Nealey,  llowa,  360; 
Trumbull  v.  Nicholson,  27  111.  149. 

c  Lovegood  v.  White,  L.  K.  6  C. 
P.  440;  Butler  v.  Knight,  L.  B.  2 
Exc.  109. 


Cliap.  XX.]  HOW  PAYMENT   iLiY   BE   MADE.  g4G3 

promise.  1  The  burden  of  showing  that  an  attorney  was 
authorized  to  accept  anything  but  money,  is  upon  the  party 
making  such  payment.  No  such  authority  will  be  pre- 
sumed.- Where  the  law  authorizes  the  sheriff  or  any  other 
officer  to  accept  payments  of  judgments,  his  authority  is  as 
limited  as  that  of  an  attorney  acting  under  a  general  re- 
tainer. 3  The  return  of  a  sheriff,  endorsed  on  an  execution, 
that  he  returns  it  satisfied  by  taking  two  notes,  etc.,  does 
not  establish,  jwima  facie,  a  satisfaction  of  the  judgment; 
for,  though  the  plaintiff  may  have  assented  to  the  taking  of 
the  notes,  this  certificate  does  not  prove  such  assent.  ■*  In 
Louisiana,  while  that  State  was  under  the  control  of  the 
authorities  of  the  Confederate  States,  and  confederate  notes 
were  the  circulating  medium,  a  plaintiff  had  execution  is- 
sued on  his  judgment,  and  caused  the  sheriff  to  enforce  the 
same.  The  debtor's  property  was  sold  by  the  sheriff'  who  re- 
ceived the  purchase  money  in  confederate  notes.  The  plaint- 
iff never  called  for. these  notes;  but  after  the  occupation  of 
the  State  by  the  Federal  forces,  he  endeavored  to  compel 
the  sheriff  to  pay  in  lawful  money  of  the  United  States,  the 
price  realized  at  the  sale.  The  Supreme  Court  of  that  State 
gave  the  following  reasons  for  denying  the  plain tifl"s  de- 
mand :  ' '  The  plaintiff  resided  in  New  Orleans,  and  he  must 
be  presumed  to  have  known  that  no  other  currency  was  in 
general  circulation ;  and  we  cannot  resist  the  conviction  that 
by  placing  the  writ  in  the  hands  of  the  sheriff  to  sell  the 
property  of  his  debtor,  he  authorized  him  to  receive  con- 
federate treasury  notes  for  the  price.  We  know  from  the 
history  of  the  times,  that  the  sheriff  could  not  have  de- 
manded with  safety  any  other  money  in  payment  of  the 
price  of  property  sold  at  public  auction,  and  that  he  could 
not  have  enforced  the  payment  of  any  kind  of  money  at  that 
time,  and  still  he  was  obliged  to  execute  the  writ.  The  de- 
mand of  the  plaintiff  is  without  equity."''  But  in  Alabama, 
an  administrator  who  in  1863  paid  to  his  successor  in  office, 
in  confederate  notes,  the  amount  of  a  decree  entered  against 


1  Butler  V.  Knight,  L.   E.  2  Esc. 
109. 

2  Portis  V.  Ennis,  27  Tex.  574. 
sMitcliell  V.  Hockett,  11  Cal.  661; 


Ellis  V.  Smith,  42  Ala.   349;   Aicardi 
V.  Eobbins.  41  Ala.  541. 

^  Mitchell  V.  Hockett,  25  Cal.  539. 

5 Harvey  u.  Waldeu,  23  La.  An.  162. 

4G3 


§^463-404  LAW  OF  JUDGMENTS.  [Chap.  XX. 


liim  in  1860,  was  held  to  have  produced  "no  satisfaction  of 
the  decree  in  whole  or  in  part.' 


"1 


§404.  Presumption  of  Payment. — At  common  law, 
every  judgment  was  presumed  to  be  paid,  after  the  lapse 
ofi  twenty  years."  In  Maine  and  in  Massachusetts,  and  per- 
haps in  other  parts  of  the  United  States,  statutes  have  been 
enacted  on  this  subject,  in  substantial  conformity  to  the 
common  law.  In  the  two  States  named,  the  statute  pro- 
vided that  every  judgment  should  be  presumed  to  be  paid 
after  twenty  years  from  the  period  when  any  duty  or  obli- 
gation accrued  thereunder.  In  Tennessee  the  period  was 
reduced  to  sixteen  years,  apparently  by  a  piece  of  judicial 
legislation,  made  early  in  the  history  of  that  State,  and 
ever  afterward  recognized  and  enforced  by  its  courts.^  But 
whether  existing  inider  the  common  law,  or  under  the  stat- 
utes referred  to,  or  by  virtue  of  rules  adopted  by  any  court, 
this  presumption  was  never  conclusive.  It  only  threw  upon 
the  party  seeking  to  enforce  his  judgment,  after  twenty  years 
of  inaction,  the  burden  of  showing  that  it  remained  unpaid.* 
The  presumption  is  overcome,  if  it  "be  made  to  appear 
that  the  plaintiff  has  used  diligence  to  enforce  the  judg- 
ment, or  that  the  defendant  has  paid  interest,  or  otherwise 
acknowledged  it."^  What  is  sufficient  to  rebut  the  pre- 
sumption of  payment  arising  from  lapse  of  time,  is  a  ques- 
tion, which,  like  all  other  questions  of  fact,  is  very  much 
within  the  discretion  of  the  court  or  jury.  Lord  Ellenbor- 
ough,  in  a  case  decided  by  him,"  held  that  this  x^rcsumption 
was  not  overthrown  by  proof  that  the  defendant  was,  during 
the  whole  time,  in  indigent  circumstances;  that  he  was  most 
of  the  time  abroad  ;  that,  while  in  England,  he  lived  under 
an  assumed  name ;  and  that,  in  the  opinion  of  his  friends, 


^  Thompson  v.  Perryman,  45  Ala. 
620. 

2  Miller  v.  Smith's  Exrs.,  IG  Wend. 
425  ;  Cope  v.  Humphries,  14  S.  &  R. 
15  ;  1  Greeul.  Ev.  $  39  ;  The  State  of 
Tennessee  v.  Virginia,  3G  Geo.  390 i 
Willingham  v.  Long,  47  Geo.  515. 

3  Blackburn  v.  Squib,  Peck's  R.  64; 
McDanielu.  Goodall,  2  Cold.  391;  An- 
derson V.  Settle,  5  Sneed,  202. 

464 


■1  Knight  V.  Macomber,  55  Maine, 
132 ;  Brewer  v.  Thomes,  28  Maine, 
81;  Denny  v.  Eddy,  22  Pick.  533;  Bis- 
sell  V.  Jaudon,  16  Ohio  S.  498;  Ander- 
son V.  Settle,  5  Sneed,  202;  Yarnell  v, 
Moore,  3  Cold.  173. 

5  Burt  V.  Casey,  10  Geo.  179. 

•^  Willaume  v.  Gorges,  1  Camp.  217. 


Chap.  XX.]        TIME  AS  EVIDENCE   OF  PAYMENT.  §^401-465 

lie  was  never  possessed  of  means  sufficient  to  pay  the  judg- 
ment. None  of  the  American  cases  carry  this  presumption 
so  far.  Proof  that  three  executions  were  issued  and  re- 
turned unsatisfied ;  that  the  debtor  stated  that  he  was  un- 
able to  pay,  and  that  he  put  his  property  out  of  his  hands, 
and  was  reputed  to  be  insolvent,  sufEciently  rebuts  the  pre- 
sumption of  payment.'  Proof  of  partial  payments  during 
the  twenty  years,  or  of  any  acknowledgment  of  the  continu- 
ing obligation  of  the  judgment,  is  also  sufficient.^  The  ver- 
dict of  a  jury,  finding  that  a  judgment  is  unpaid,  is  suffi- 
ciently sustained  by  proof  of  the  insolvency  of  the  defend- 
ant, or  of  his  relationship  with  plaintiff,  or  of  any  other  cir- 
cumstance calculated  to  satisfy  the  minds  of  the  jurors  that 
the  judgment  is  still  due.^ 

§  465.  Time  as  Evidencs  of  Payment.  —  "Presump- 
tions are  founded  on  the  ordinary  course  of  things.  It  is 
not  usual  for  a  creditor  to  delay  enforcing  the  payment  of 
a  debt  due  him  for  such  a  length  of  time.  The  fact  that  he 
does  so,  evinces  a  consciousness  that  it  was  not  owing,  and 
creates  a  strong  presumption  of  payment."^  This  is  an 
extract  from  the  opinion  of  the  Supreme  Court  of  Tennes- 
see, in  a  case  in  which  that  court  held  that,  after  the  lapse 
of  seven  years,  during  which  no  effort  was  made  to  collect  a 
judgment,  the  jury  might  properly  consider  this  long  period 
of  inactivity  as  a  circumstance  to  be  weighed  by  them  in 
determining  whether  the  judgment  remained  unpaid.  In  a 
later  case,  in  the  same  State,  proof  that  the  plaintiff  resided 
for  thirteen  years  in  the  same  neighborhood  with  his  judg- 
ment debtor,  during  all  that  time  making  no  attempt  to  col- 
lect his  judgment ;  that  plaintiff  then  moved  away  without 
any  attempt  at  collection,  and  that  the  defendant  all  the  time 
had  ample  property  to  satisfy  the  judgment,  was  held  to 
create  a  presumption  of  payment,  though  the  period  of  six- 
teen years  allowed  by  the  law  of  that  State,  had  not  yet 
elapsed.^     While  the  presumption  of  payment,  based  upon 


1  Knight  V.  Macomber,  55  Maine, 
132. 

2  Denny  u.  Eddy,  22  Picli.  533;  Bis- 
sell  V.  Jaudon,  IG  Ohio  S.  498;  Mower 
t'.  Kip,  2  Ed.  Ch.  1G5, 

(30)  4G5 


3Yarnell   v.   Moore,    3   Cold.  173; 
Boardman  v.  De  Forest,  5  Conn.  8. 
*  Leiper  v.  Erden,  5  Yerg.  97. 
5  Husky  V.  Maples,  2  Cold.  25. 


§§4G5-4GG  LAW  OF  JUDGMENTS.  [Chap.  XX. 

lapse  of  time  alone,  is  an  arbitrary  presumption  not  created 
by  any  less  than  the  full  term  provided  by  law,  still  there 
is  no  doubt  that  the  lapse  of  a  long  period  of  time,  though 
less  than  the  full  term  of  limitation,  is  a  proper  circumstance 
for  the  consideration  of  tlie  jury,  and  that,  in  connection 
with  other  circumstances,  it  will  create  the  presumption  of 
payment.' 

§  4:(jQ.  Paid  Judgment. — Payment  produces  a  permanent 
and  irrevocable  discharge,  after  which  the  judgment  cannot 
be  restored  by  any  subsequent  agreement;'  nor  kept  on  foot 
to  cover  new  and  distinct  engagements.''  But  in  England, 
the  rule  seems  to  be  different.  A  defendant  there  confessed 
judgment  for  X500.  The  debt  due  from  him  to  the  plaintiff 
was  subsequently  increased  to  XI, 000.  It  was  then  agreed 
thfit  the  last  named  sum  might  be  paid  in  installments,  for 
which  the  judgment  should  stand  as  security.  It  was  held 
that  neither  the  defendant  nor  his  grantee,  Avilh  notice, 
could  satisfy  the  judgment  by  paying  the  X500,  or  any  sum 
less  than  the  whole  amount  for  Avhich  the  defendant  had 
agreed  that  it  might  stand  as  security.^  If  a  judgment  be 
confessed  for  the  purpose  of  securing  future  advances,  and 
such  advances,  afterwards  made  to  the  amount  of  the  judg- 
ment, are  paid  by  the  debtor,  the  judgment,  as  against 
subsequent  purchasers  or  incumbrancers,  is  functus  officio. 
It  cannot  stand  as  continuing  securit}^  for  further  advances, 
nor  for  the  final  balance  of  current  account  between  the 
parties.''  The  fees  of  the  sheriff  on  execution  are  no  part 
of  the  judgment.  They  constitute  a  demand  against  the 
party  for  whom  the  services  are  performed.  If  the  judg- 
ment be  paid,  the  sheriff's  authority  is  extinguished;  and 
he  cannot  lawfully  proceed  to  levy  upon  property  to  enforce 
the   collection   of  his   costs. '^     But  an  entry  on   a  docket 


1  Baker  v.  Stonebraker's  Adm'r.,  36 
Mo.  333;  Wherry  v.  McCammon,  12 
Kich.  Eq.  337;  Winstanly  v.  Savage, 
2McCordCh.  435;  Goldhawk  v.  Du- 
ane,  '2  AVash.  C.  C.  323;  Thompson  v 
Thompson,  2  Head,  405;  Kiusler  v. 
Holmes,  2  S.C.  (N.  S.)  4.83. 

4G6 


2  Marvin  v.  Vedder,  5  Cow.  871; 
Averill  v.  Loucks,  G  Barb.  19. 

3Troup  V.  Wood,  4  Johns.  Ch.  228. 

*  Crafts  V.  Wilkinson,  4  Ad.  &  EL 
N.  S.  74. 

'■>  Truscott  V.  King,  6  N.  Y.  147. 

6  Jackson  v.  Anderson,  4  Wend. 
474;  Craft  d.  Merrill,  14  N.  Y.  45G. 


Chap.  XX.]      PAYMENT  BY  A  STRANGER.       ^^66-408 

acknowledging  the  payment  of  the  debt  and  interest  does 
not  satisfy  the  whole  judgment.  It  may  be  revived  by 
scire  facias  against  a  ierre  tenant,  to  collect  the  costs  recov- 
ered by  plaintiff  as  a  part  of  his  judgment.^ 

g  467.  By  Payment  of  another  Judgment. — Sometimes, 
as  where  a  trespass  is  committed  by  several,  separate  judg- 
ments may  be  rendered  against  two  or  more  persons  upon 
the  same  cause  of  action.  The  acceptance  of  payment 
upon  either  of  these  judgments  releases  the  other ;^  so  if 
one  judgment  be  rendered  on  an  original  obligation,  and 
another  judgment  be  entered  upon  an  obligation  given  as 
collateral  security  to  the  first,  the  payment  of  either  judg- 
ment discharges  the  other;  and  a  sale  made  under  the  latter 
after  it  is  so  satisfied,  is  void.^  And  in  the  States  where, 
though  a  plaintiff  is  allowed  to  maintain  separate  actions 
against  each  of  several  tortfeasors,  his  taking  out  execution 
against  either  is  regarded  as  an  irrevocable  election  to  pursue 
that  one  only;  such  election  is  a  satisfaction  of  all  the  judg- 
ments against  the  other  tortfeasors.  * 


PAET  II.— OF  THE  EIGHT  OF  THE  PAYER  TO  SUBKOGATION. 

§  468.  Payment  by  a  Stranger.— Payment  of  a  judg- 
ment by  a  third  person,  will  operate  as  an  extinguishment 
or  not,  according  to  the  intention  of  the  parties  when  the 
payment  is  made.  If  the  parties  intend  still  to  keep  the 
judgment  on  foot  they  may  do  so,  proceeding  in  the  name 
of  the  plaintiff.'^  But  a  third  person  making  an  absolute 
j)ayment,  in  the  absence  of  any  understanding  with  the 
creditor  that  the  judgment  is  to  be  kept  alive,  is  not  equita- 
bly entitled  to  be  subrogated  to  the  rights  of  the  latter. 
"It  is  only  in  cases  where  the  person  advancing  money  to 
pay  the  debt  of  a  third  party,  stands  in  the  situation  of  a 
surety,  or  is  compelled  to  pay  it  to  protect  his  own  rights 
that  a  court  of  equity  substitutes  him  in  the  place  of  the 


^  Altman  v.  Klingensmith,  6  Watts, 
445. 

2 Sherman  v.  Brett,  7  Wis.  139; 
Jones  V.  Ransom,  3  Ind.  327 ;  Thomp- 
son V.  Percival,  5  B.  &  Ad.  925. 


3  Craft  V.  Merrill,  14  N.  Y.  456. 
iBoardman  v.  Acer,  13  Mich.  77. 
5  Null  V.  Moore,  10  Ired.  324. 


467 


§g468-iG9  LAW  OF  judgments.  [Chap.  XX. 

creditor,  as  a  matter  of  course,  without  any  agreement  to 
that  effect.  In  other  cases  the  demand  of  a  creditor  which 
is  paid  with  the  money  of  a  third  person,  and  without  any 
agreement  tliat  the  security  shall  be  assigned  or  kept  on 
foot  for  the  benefit  of  such  third  person,  is  absolutely  ex- 
tinguished."^ 

g  4G9.  Payment  by  Officer. — An  officer  to  whom  an  exe- 
cution had  been  given,  neglected  to  levy  thereunder  in 
due  time.  .  He  then  paid  the  judgment  voluntarily,  without 
taking  any  assignment,  and  returned  the  execution  as  un- 
satisfied. He  afterwards  procured  the  issuing  of  an  alias 
for  his  own  benefit;  but  the  court  held  that,  by  his  payment, 
he  had,  under  the  circumstances,  produced  an  absolute  and 
irrevocable  satisfaction  of  the  judgment."  If,  however,  in- 
stead of  paying  voluntarily,  he  had  waited  until  compelled 
to  pay  by  a  judgment  of  the  law,  the  legal  effect  of  his  pay- 
ment would  have  been  to  invest  him  with  the  rights  of  the 
original  judgment  creditor.  ^  But  in  the  State  of  New  York,  a 
position  is  taken  which  denies  the  distinction  here  made  be- 
tween a  voluntary  and  an  involuntary  payment  made  by  an  of- 
ficer who  has  become  liable  for  his  neglect  in  executing  pro- 
cess. "No  distinction,"  says  the  court,  "  has  been  taken 
between  payments  voluntarily  made  by  the  sheriff  and  those 
made  upon  compulsion^in  consequence  of  a  liability  incurred 
by  him,  and  there  is  no  difference  in  principle.  It  cannot 
be  material  whether  a  sheriff  voluntarily  pays  the  amount 
of  a  claim  of  his  own  money,  or  by  a  voluntary  breach  of  duty 
places  himself  in  a  position  in  which  the  payment  can  be 
enforced  against  him.  An  action  is  denied  to  him  because 
such  a  practice  woiild  be  not  only  against  the  rules  of  law, 
but  would  tend  to  multiply  suits  and  increase  litigation.* 

"The  right  to  enforce  the  execution  for  his  own  benefit 
has  been  denied  him  from  principles  of  policy  and  the  grand 
inconvenience  which  would  ensue."  It  will  be  seen,  from 
the  decision  from  which  this  extract  is  made,  that,  in  no 


1  Sandford  v.  McLean,  3  Pai.  Ch. 
117. 

■^  Lintz  V.  Thompson,  1  Head.  456. 

3  Smith  V.  Alexander,  4  Suocd.  482; 
Allan  V.  Holding,  9  Mass.  133, 

4G3 


■*  Jones  V.  "Wilson,  3  Johns.  R.  434; 
Menderbach  v.  Hopkins,  8  Johns.  R. 
-136;  Whittier  v.  Hemmiugway,  22 
Slaine,  238;  Beach  v.  Vandcnburgh, 
10  John.  3G1. 


Chap.  XX.]  PAYMENT  BY  SURETY.  §^469-470 

case,  will  a  sheriff  who  has  paid  a  sum  sufficient  to  satisfy 
the  plaintiff's  demand,  be  permitted,  by  taking  an  assign- 
ment, or  otherwise,  to  keep  alive  a  judgment  which,  but  for 
his  own  negligence,  ho  would  have  satisfied  by  levy  and  sale 
under  execution.  The  grounds  of  this  denial  are  based 
upon  principles  of  public  policy,  and  are  thus  clearly  and 
convincingly  stated  in  the  same  decision. 

"It  is  not  so  much  a  question  of  individual  right  as  of 
public  policy.  It  is  fit  and  proper  that  the  judgment  debtor 
should  be  made  to  pay  his  debts,  and  it  is  the  province  and 
business  of  the  sheriff'  to  whom  process  is  issued  to  compel 
him  to  do  so,  by  a  proper,  vigilant  and  seasonable  perform- 
ance of  his  duty;  but  it  is  not  discreet  or  consistent  with 
just  views  of  policy,  by  any  inducements  to  encourage  a  lax 
or  careless  discharge  of  the  responsible  duties  devolved 
upon  sheriffs.  If  an  officer,  intrusted  with  the  execution  of 
final  process,  may,  without  peril  of  ultimate  loss,  select  his 
own  time  for  its  execution,  he  may  seriously  interfere  with 
the  rights  of  the  creditor  by  delaying  the  process  to  his  pre- 
judice, and  he  may  at  his  option  employ  the  same  process 
to  annoy  and  oppress  the  debtor,  and  to  make  gain  to  him- 
self. Both  the  debtor  and  creditor  will  be  in  a  measure 
subject  to  the  caprice  of  the  sheriff,  and  serious  incon- 
veniences will  result,  if  rights  either  equitable  or  legal  are 
held  to  result  to  a  sheriff  from  his  own  breach  of  duty."^ 

^  470.  Payment  by  Surety. — The  law  in  relation  to  a 
surety  who  has  paid  a  judgment  against  himself  and  his 
principal,  has  been  thus  stated  in  North  Carolina:  "The 
right  of  a  surety  to  keep  alive  a  judgment,  which  he  has 
paid,  by  having  an  assignment  made  to  a  stranger,  for  his 
benefit  is  unquestionable.  When  he  advances  the  money, 
he  has  a  clear  equity  (if  he  desired  it,)  to  be  subrogated  to 
the  rights  of  the  creditor,  and  to  use  the  creditor's  judgment 
for  the  purpose  of  coercing  payment  against  the  principal. 
Whether  money  advanced  in  such  a  way  be  an  extinguish- 
ment or  a  purchase,  seems  to  be  a  question  of  intention. 
If  it  be  paid,  and  nothing  be  said  or  done  to  show  a  con- 

1  Carpenter  v.  Stilwell,  11  N.  Y.  61.  \  See  also  Eeed  v.  Pruyn,  7  John.  426; 
Sherman  v.  Boyce,  15  Johns.  443.        | 

469 


§§470-471  LAW  OF  JUDGMENTS.  [Chap.  XX. 

trarv  intendment,  an  extinguishment  will  be  presumed;  but 
if  an  assignment  be  made  to  one  not  a  party,  so  as  to  show 
a  purpofip  to  keep  it  alive,  it  is  sufficient.  That  a  party  de- 
fendant furnishes  the  money,  and  that  the  assignment  is 
made  on  a  day  subsequent  to  the  advancement  of  the 
money,  can  make  no  difference,  provided  it  was  intended, 
at  the  time  it  was  advanced,  as  a  purchase,  and  not  as  a 
payment."  ' 

No  doubt  the  above  language  in  no  wise  over  estimates 
the  rights  of  sureties.     The  doctrine  of  subrogation  is  rec- 
ognized in  its  fullest  extent  in  the  civil  law,  under  which 
"a  surety  paying  the  debt  is  subrogated  to  the  rights  of  the 
creditor  ipso  facto."  ^     "It  is  equally  a  settled  principle  in 
the  English  Chancery,  that  a  surety  will  be  entitled  to  every 
remedy  which  the  creditor  has  against  the  principal  debtor, 
to  enforce  every  security,  and  to  stand  in  the  place  of  the 
creditor,  and  have  his  securities  transferred  to  him,  and  to 
avail  himself  of  those  securities  against  the  debtor.     This 
right  of  the  surety  stands  not  upon  contract,  but  upon  the 
same  principle  of  natural  justice  upon  which  one   surety 
is  entitled  to  contribution  from  another."^     This  right  of  a 
surety  is  operative  against  a  grantee  of  the  judgment  debtor 
who  has  taken  real  estate  subject  to  the  lien  of  the  judg- 
ment.*    The  entry  of  satisfaction  on  a  judgment  collected 
from  a  surety  by  execution,  such  entry  not  being  made  at 
the  instance  of  the  surety,  is  not  a  sufficient  ground  for  re- 
fusing subrogation.     Whether  the  fact  of  payment  is  or  is 
not  apparent  from  the  record,  has  no  influence  on  the  rights 
of  the  parties.  ^ 

g  471.  Payment  by  Indorser. — "There  can  be  no  doubt 
that  upon  payment  of  a  note  or  bill  of  exchange  by  a  party 
thereto,  who  is  not  primarily  liable  for  its  payment,  he  be- 
comes entitled  to  the  possession  of  the  bill  or  note,  and  may 
maintain  an  action  upon  it  against  any  or  all  the  prior  par- 
ties thereto  who  have  been  properly  charged  ;  and  if  the 


^Barringer  v.  Boyden,  7  Jones' 
Law,  N.  C.  187;  See  also  Dempsey  v. 
Bush;  18  Ohio  S.  376. 

sSandford  v.  McLean,  3  Pai.  117. 

sHayes  v.  Ward,  4  Johns.  Ch.  123. 

470 


4MeCluugu.  Beirne,  10  Leigh,  394. 
See  also  Cottle's  Appeal,  23  Penn.  S. 
294. 

sBaily  v.  Brownfield,  20  Penn.  S. 
41. 


Cliap.  XX.]        PAYMENT  BY  ONE   OF  SEVERAL.  g §471-472 

contract  of  the  party  liable  is  merged  in  a  judgment,  the 
right  of  the  person  paying  is  to  the  judgment,  as,  but  for 
the  merger,  it  would  have  .been  to  the  bill  or  note.  The 
payment  by  an  indorser  does  not  extinguish  the  liability  of 
the  maker  or  acceptor,  and  the  endorser  may  take  an  as- 
signment of  any  judgment  which  may  he  recovered  by  the 
holder,  and  enforce  it  for  his  own  benefit."^ 

§472.     Payment  by  One  of  Several  Jointly  Bound. — 

Whether  one  of  the  several  persons  against  whom  a  joint 
judgment  has  been  recovered,  may  pay  the  judgment  and 
still  keep  it  on  foot,  &?/  amj  means,  or  for  any  purpose,  is  a 
question  upon  which  the  authorities  are  very  equally  divided. 
In  an  early  case  in  New  York  a  decree  was  entered  against 
several,  without  designating  the  sum  to  be  paid  by  each. 
One  of  the  defendants  paid  the  full  amount  of  the  decree, 
at  the  same  time  stipulating  with  plaintiff's  solicitor 
for  the  right  to  reimburse  himself.  An  execution  being 
issued  at  the  instance  of  the  defendant  who  had  paid,  it  was 
at  first  stayed ;  but,  upon  petition  for  vacation  of  this  stay, 
the  Chancellor  said:  ''The  defendant  who  had  paid  more 
than  his  due  proportion,  or  who  had  paid  the  whole,  when 
the  same  ought  to  be  borne  by  the  co-defendants,  or  some 
of  them,  was  entitled  to  stand  in  the  place  of  the  plaintiff, 
and  to  use  the  decree  for  his  protection  and  indemnity,  so 
far  as  it  clearly  and  certainly  appeared  that  the  other  de- 
fendants ought  to  contribute.'"  In  this  case  the  defendants 
were  not  jointly  bound  on  any  obligation  made  by  them  an- 
terior to  the  decree.  They  were  the  administrators  of  the 
mortgagee,  and  assignees  under  him.  Upon  a  bill  filed 
against  them  by  the  mortgagor,  they  were  required  by  the 
decree  to  pay  a  sum  named  for  rents  and  profits ;  but  the 
decree  did  not  designate  the  sum  to  be  paid  by  each.  One 
of  them  paid  the  entire  decree,  to  prevent  "an  imj^ending 
execution."  This  decision,  therefore,  because  the  case  of 
which  it  disposed  differed  in  these  material  circumstances 
from  ordinary  cases  resulting  in  a  joint  judgment,  can 
hardly  be  considered  as  authority  on  either  side  of  the 


1  Eno  V.  Crooke,  10  N.  Y.  G6;  Corey 
V.  White,  3  Barb.  12. 


■  Scribner  u.  Hickok,  4  Johjjs.  Ch. 
530. 

471 


gg472-473  LAW  OF  judgments.  [Cliai).  XX. 

question.     At  all  events,  the  recent  decisions  in  the  same 
State,  are  in  opposition  to  the  general  tenor  of  the  Chan- 
cellor's remarks  in  Scribne}'  v.  Hichoh.     In  the  most  recent 
case  in  New  York,   treating  on   this  subject,   Selden,    J., 
in  pronouncing  the  unanimous  judgment  of  the  Court  of 
Appeals,  said:     "The  general  principles  upon  which  this 
case  depends,  are  simple  and  plain.     Where  one  of  several 
defendants  against  whom  there  is  a  joint  judgment,  pays  to 
the  other  party  the  entire  sum  due,  the  judgment  becomes 
thereby  extinguished,  Avhatever  may  be  the  intention  of  the 
parties  to  the  transaction.     It  is  not  in  their  power,  by  any 
arrangement  between  them,  to  keep  the  judgment  on  foot  for 
the  benefit  of  the  party  making  the  payment.     If,  therefore, 
in  such  a  case,  a  defendant  take  an  assignment  to  himself, 
or,  unless  under  special  circumstances,  even  to  a  third  per- 
son for  his  own  benefit,  the  assignment  is  void  and  the  judg- 
ment  satisfied."'     The   rule,   as  laid  down  in  New  York, 
seems  to  be  recognized  in  Massachusetts,^  and  is  distinctly 
affirmed  and  applied  in  Alabama  and  North  Carolina  where 
the  joint  defendants  are  co-sureties.^     On  the  other  hand, 
the   right  of   any  defendant  to  furnish  money  to  pay  the 
whole  judgment,  and,  by  taking  an  assignment  to  a  third 
person,   to  employ  the  judgment  as  a  means  of  enforcing 
contribution  from  his  co-defendants,  is  distinctly  and  con- 
fidently affirmed.     The  right  to  subrogation  in  such  cases, 
is  said  to  depend  only  on  the  intention  of  the  debtor  in 
making  the   payment.^     "To  construe  that  as  a   payment 
which  was  meant  to  be  an  assignment  is  a  contraction  of 
terms.  "^ 

§  473.  Payment  by  Co-Defendant  and  by  Third  Person. 
J.  v.,  being  defendant  in  a  judgment,  of  which,  as  between 
him  and  his  co-defendants,  he  was  liable  for  one  seventh, 
paid  the  judgment  by  giving  the  plaintiff  one  seventh  in 
money,  and  a  note  indorsed  by  C.  V.  for  the  remaining  six 


1  Harbeck  v.  Vauderbilt,  20  N.  Y. 
395. 

sHammatt  v.  Wyman,  9  Mass.  138. 

aPreslar  v.  Stalhvorth,  37  Ala.  405; 
Towe  V.  Felton,  7  Jones,  21G;  Ilintou 
V.  Odenheimer,  4  Jones  Eq.  lOG. 

472 


4  Coffee  V.  Tevis,  17  Cal.239;  Wheel- 
er's Estate,  1  Md.  Ch.  bO;  Browu  v. 
"White,  5  Dutch.  N.  J.  511),  reversing 
White  V.  Brown,  5  Id.  307. 

SMcIntyre  u.  Miller,  13  M.  &.  W. 
728.  i 


Chap.  XX.]  LEVY  ON  LANDS.  §§473-474 

sevenths.  •  An  assignment  of  the  judgment  was,  at  the  same 
time,  made  to  J.  Y.'s  attorney,  to  be  held  by  him  to  indem- 
nify C.  V.  for  his  liability  as  indorser  of  the  note.  C.  V., 
having  been  obliged  to  pay  the  note,  the  question  arose, 
whether  he  was  entitled  to  eDforce  the  judgment  by  execu- 
tion. The  court  held,  that  if  the  payment  of  the  judgment 
had  been  made  by  J.  V.  and  C.  V.  jointly,  and  an  assign- 
ment taken  in  the  name  of  a  third  person,  such  assignment, 
so  far  as  intended  to  protect  J.  V.,  would  be  void,  but  as 
to  C.  v.,  would  be  valid;  that  although  C.  V.  did  not  pay 
money,  he  became  contingently  liable  to  pay  it,  "and  an 
assignment  of  the  judgment  to  protect  him  against  this  lia- 
bility, was  just  as  legitimate  and  proper  as  it  would  have 
been  to  indemnify  him  for  money  paid;"  and  further,  that 
as  the  law  always  presumed  a  lawful  rather  than  an  unlawful 
intent,  it  must  be  presumed,  in  the  absence  of  evidence  to 
the  contrary,  that  the  assignment  was  taken  for  the  lawful 
purpose  of  protecting  C.  V.^ 


PAET  III.— BY  PEOCEEDINGS  UNDER  EXECUTION. 

§  474.  Levy  on  Lands. — A  return  of  "lands  delivered" 
on  an  elegit  is  a  legal  satisfaction  of  the  judgment,-  though 
the  debtor's  interest  in  the  land  and  its  income  is  set  off  to 
the  creditor  at  a  yearly  value  to  continue  for  a  term  of  years, 
should  the  debtor  so  long  live,  and  he,  having  only  a  life 
estate,  die  before  the  expiration  of  the  term  of  years.  ^  But 
the  nature  of  the  proceedings,  by  levy  and  sale  under  exe- 
cution, is  entirely  different  from  that  which  formerly  re- 
sulted in  setting  off  to  the  creditor  sufficient  lands  of  the 
debtor  to  discharge  the  debt.  By  a  levy  of  land  under 
execution,  the  creditor  acquires  no  property  in  the  land, 
absolute  or  conditional.  Such  levy,  unless  consummated 
by  a  sale  (and  then  only  to  the  extent  of  the  proceeds  real- 
ized), is  no  satisfaction  of  the  judgment;"^  and  an  action  may 


1  Harbeck  v.  Vanderbilt,  20  N.  Y. 
395. 

^  Hinesly  v.  Huun's  Admr.,  5  Harr. 
236. 

3  Thomas  u.  Platts,  43  N.  H.  629; 


Pratt  V.  Jones,  22  Verm.  341 ;  Blum- 
field's  Case,  5  Ptep.  87^  ;  Com.  Dig. 
Execution,  H. 

''  Spafford  v.  Beach,  2  Doug.  Mich. 
150. 

473 


§§474-475  LAW  OF  judgments.  [Chap.  XX. 

be  prosecuted  on  such  judgment  while  the  levy  is  still  sub- 
sisting.' But  it  is  said  that  the  court  will  so  control  its 
process  as  to  prevent  the  plaintiff  frofu  harassing  defendant 
and  putting  him  to  unnecessary  cost,  by  abandoning  a  levy 
on  land  and  proceeding  to  make  a  new  levy  on  other  prop- 
erty.'- 

§  '475.  Levy  on  Personal  Property. — Levy  upon  per- 
sonal property,  sufficient  in  value  to  satisfy  the  execution,  is 
frequently  said  to  operate  per  se  as  an  extinguishment  of  the 
judgment.^  In  regard  to  the  effect  of  such  a  levy,  there  is 
no  substantial  conflict  of  opinion,  though  judges  have  dif- 
fered somewhat  from  one  another  in  describing  this  effect 
and  the  means  by  which  it  is  produced.  None  of  the  de- 
cisions assumes  that  a  levy  produces  any  absolute  satisfac- 
tion. It  is  a  satisfaction  suh  modo;  the  levy  must  be  fairly 
exhausted  before  further  proceedings  can  be  taken,  and 
while  these  proceedings  are  going  on,  the  plaintiff  cannot 
have  another  execution,  nor  sue  on  the  judgment,  nor 
redeem  lands  under  it.*  After  the  levy,  if  the  sheriff  waste 
the  property,  or  it  is  lost  through  his  neglect,  the  satisfac- 
tion is  absolute.*  If,  without  any  fault  of  the  plaintiff,  or 
of  the  sheriff,  the  levy  does  not  produce  proceeds  sufficient 
to  satisfy  the  execution,  then  the  plaintiff  is  entitled  to  pro- 
ceed, for  so  much  as  remains  unpaid,  as  if  no  levy  had  been 
made.*'  If,  after  levy  upon  sufficient  personal  property, 
the  court  orders  that  the  judgment  be  not  enforced,  the 
order  releases  the  levy,  but  does  not  discharge  the  judg- 


iDeloach  v.  Myrick,  6  Geo.  410; 
Keynokls  u.  Ex'rs  of  Eogers,  5  Hamm. 
1G9;  Putterson  r.  Swan,  9  S.  &  R.  IG; 
Beazley  v.  Prentiss,  13  S.  &  M.  97; 
Shepard  v.  Rowe,  14  Wcud.  260;  Tay- 
lor V.  Kanney,  4  Hill,  G19;  Ladd  v. 
Blunt,  4  Mass.  402. 

STrapnall  v.  Eichardsou,  13  Ark. 
543. 

'•^Ex.  parte  Lawrence,  4  Cow.  417; 
Wood  V.  Torrey,  6  Wend.  562;  Carr 
V.  Weld.  19  N.  J.  Eq.  319;  Hoyt  v. 
Hudson,  12  John.  207  ;  Troup  v. 
Wood,  4  Johns.  Ch.  228;  People  v. 
Chisholm,  8  Cal.  29. 

474 


4 First  National  Bank  v.  Eogers,  13 
Minn.  407;  Mountuey  v.  Andrews, 
Cro.  Eliz.  237;  Green  v.  Burke,  23 
Wend.  501;  Mcintosh  v.  Chew,  1 
Blackf.  289;  Bunk  v.  Eogers,  15  Minn. 
3S1. 

5  Pickens  v.  Harlow,  2  S.  &  M. 
428;  Ladd  v.  Blunt,  4  Mass.  402. 

0  Barrett  r.  Thompson,  5  Ind.  457; 
Banta  v.  McClennan,  1  McCartuer, 
120;  Hoard  v.  Wilcox,  47  Penn.  S.  51; 
Curtis  V.  Eoot,  28  111.  3G7;  Mickles  v. 
Haskin,  11  Wend.  125;  Voorhees  v. 
Gros,  3  How.  P.  2G2;  People  v.  Hop- 
so.u,  1  Denio,  574. 


Chap.  XX.]        LEVY   ON  PERSONAL    PROPERTY.  §-175 

ment.'     The  restoration  of  the  property  to  the  defendant, 
at  his  request,  or  by  some  act  for  which  he  is  responsible, 
prevents  the  levy  from  operating  as  a  satisfaction,  so  far,  at 
least,  as  his  rights  are  concerned.*     When  third  persons,  as 
sureties,  are  collaterally  liable,  the  release  of  the  levy  can- 
not revive  the  judgment  as  to  them ;'  and,  in  general,  so  far 
as  the  rights  of  third  persons  are  concerned,  the  levy  upon 
goods  is  a  satisfaction  of  the  judgment,  to  the  extent  of 
their  value,  unless  plaintiff  is  deprived  of  the  benefit  of  his 
levy  without  any  fault  of  his.*     It  is  apparent  that  the  satis- 
faction, if  such  it  may  be  called,  produced  by  a  levy  on 
personal  property,  is  liable  to  be  removed  by  a  variety  of 
circumstances.     Therefore,    it   is   probable   that  the   term 
"suspension"   is  more  applicable   to  the  effect  of  such  a 
levy  than  the  term  satisfaction.     Thus,  Chief  Justice  Bron- 
son,  in  People  v.  Hopson  (1  Deuio),  said:     "If  the  broad 
ground   has  not  yet  been  taken,   it  is  time  it  should  be 
asserted,  that  a  mere  levy  on  sufficient  personal  property 
wdthout  anything  more,  never  amounts  to  a  satisfaction  of 
the  judgment.     So  long  as  the  property  remains  in  legal 
custody  the  other   remedies  of   the  creditor  will   be  sus- 
pended.    He  cannot  have  a  new  execution  against  the  per- 
son or  property  of  the  debtor,  nor  maintain  action  on  the 
judgment,  nor  use  it  for  the  purpose  of  becoming  a  redeem- 
ing creditor.     The  mere  levy  neither  gives  anything  to  the 
creditor  nor  takes  anything  from  the  debtor.     It  does  not 
divest  title.     It  only  creates  a  lien  on  the  property.'"''     But 
the  distinctions  here  taken  show  a  difference  in  the  choice 
of  terms  in  which  to  convey  the  same  idea,  rather  than  any 
material  difference  of  opinion.     By  whatever  term  we  desig- 
nate the  result  of  a  levy  on  personal  property,  and  from 
whatever  cause  that  result  is  thought  to  proceed,  the  result 
remains  the  same,  and  casts  upon  the  party  who  has  made 
such  a  levy,   before  he  can  proceed  further,   the  onus  of 
establishing  that,  from  no  fault  of  his  or  of  the  officers,  or 


1  Mulford  V.  Estudillo,  32  Cal.  131. 

2  U.  S.  V.  Dashiel,  3  Wall.  688;  HoL 
brook  V.  Champlin,  Hoffm.  Ch.  148; 
Thomas'  Ex'r  v.  Cleveland,  33  Mo. 
126;  Smith  v.  Hughes,  24  111.  270. 


\ 


3  Mulford  V.  Estudillo,  23  Cal.  94; 
Howerton  v.  Sprague,  64  N.  G.  451. 

4 Lyon  V.  Hampton.  20Penn.  S.  46; 
Hunt  V.  Breading,  12  S.  &  R.  37. 

5  See  also  to  same  effect,  Whiting  v. 
Beebe,  7  Eng.  421. 

475 


§§475-4:70  LAW  or  judgments.  [Chap.  XX. 

from  some  act  or  consent  of  the  defendant,  the  levy  has  not 
proved  productive  of  a  complete  satisfaction.' 

§  476.     Discharge  of  a  Defendant  talcen  in  Execution. 
At  common  law,  the  discharge  from  custody  of  a  defendant 
taken  in  execution,  was  a  satisfaction  of  the  judgment.     If 
such  defendant  regained  his  liberty,  no  further  proceedings 
could  be  taken  for  the  same  debt,  unless  he  had  escaped 
without  the  consent  of  the  creditor,  or  had  procured  such 
consent  through  fraud."     The  debtor  after  his  discharge  by 
consent  could  not  lawfully  be  retaken,  though  he  procured 
this  consent  by  giving  a  new  security,  which  was  defeated 
on  account  of  an  informality  ;^  or  agreed  that  the  judgment 
should  be  revived,  or  that  he  would  pay  the  debt  at  a  future 
day;*  or  that  the  judgment  should  continue  in  force  as  se- 
curity, and  should  be  enforced  by  execution,  if  not  paid  !• 
The  rigor  of  the  common  law  was  relaxed  in  England,  in 
the  reigns  of  James  the  First  and  of  William  the  Third,  by 
statutes  authorizing  the  arrest  of  defendant  on  a  new  exe- 
cution, if  his  liberty  had  been  gained  by  privilege  of  either 
House  of  Parliament,  or  by  escape  from  prison  ' '  by  any 
ways  or  means  howsoever;"  and  also  authorizing  the  cred- 
itor to  sue  out  a  new  execution  against  the  projperty  of  a 
debtor  dying  in  prison.*^     These  statutes  are  supposed  to 
be  part  of  the  common  law  of  Massachusetts;"  and  if  so, 
they  must  be  equally  applicable  to  the  other  English  colo- 
nies in  this  country.     Both  in  this  country  and  in  England, 
several  exceptions  seem   to  be  recognized,  in  addition  to 
those  provided  by  these  statutes,  or  existing  at  the  earlier 
periods  of  the  common  law.      A  discharge  from   custody 
because  plaintiff  refuses  to  pay  the  prison  fees,  is  now  no 


1  Barret  v.  Thompson,  5  Intl.  457; 
Mcintosh  V.  Chew.  1  Blkf.  289. 

2  Vigers  v.  Aldrich,  4  Burr,  2483 ; 
King  V.  Goodwin,  IG  Mass.  C3 ;  State 
V.  Richardson,  18  Ala.  100  ;  Jaquos  v. 
Wilthy,  1  D.  &  E.  557;  Porter  v.  Ing- 
ham, 10  Mass.  88;  Cattliu  v.  Kernott, 
3  C.  B.  N.  S.  70G;  Lambert  v.  Parnell, 
15  L.  J.  Q.  B.  55  ;  S.  C.  10  Jur.  31. 

476 


3  Jaques  v.  Wilthy,  1  D.  &  E.  552  ; 
Clement  v.  English,  6  D.  &  E.  525. 

4  Thompson  v.  Bristow,  Barnes ' 
notes,  205  ;  Tamer  v.  Hague,  7  D.  & 
E.  420. 

5  Blackburn  v.  Stiipart,  2  East.  243; 
Coburn  v.  Palmer,  10  Cush.  273. 

6  Sts.  Jac.  I  C.  13 ;  21  Jac.  1  C.  24 ; 
8  &  9  Wm.  Ill,  C.  27. 

'  Coburn  u.  Palmer,  10  Cush.  273. 


Chap.  XX.]     SUSPENSION  while  in  custody.         g§47G-'i77 

satisfaction  of  the  judgment.'  Neither  is  a  satisfaction  pro- 
duced by  a  discharge  of  the  debtor  from  custody  under 
laAvs  for  the  benefit  of  insolvent  debtors.  The  plaintiff 
may,  notwithstanding  such  discharge,  proceed  to  enforce 
his  lien  on  lands  of  the  debtor  though  they  have  been  con- 
veyed to  third  persons  pending  the  imprisonment."  In 
Massachusetts,  the  discharge  of  a  debtor,  by  virtue  of  a 
void  recognizance,  is  not  regarded  as  a  discharge  by  con- 
sent, but  as  an  escape,  and  the  judgment,  therefore,  is  not 
released  in  consequence  of  the  arrest  and  liberation.^  The 
imprisonment  of  a  debtor  for  a  fine  is  not  a  discharge  there- 
of. Therefore  his  release  from  imprisonment  by  the  people 
or  by  the  king  does  not  discharge  the  fine.* 

§  477.  Suspension  w.-ile  in  Custody. — The  taking  of  the 
defendant  in  execution,  like  the  levy  upon  sufficient  goods, 
operates  as  a  suspension  of  the  judgment  for  the  time  be- 
ing. ^  But  if  there  be  two  or  more  defendants  the  taking  of 
one  of  them  in  execution  does  not  suspend  the  plaintiff's 
right  to  take  the  others.  He  may  proceed  to  arrest  the  de- 
fendants successively,  and  if  a  return  of  non  est  inventus  be 
made  as  to  one,  the  plaintiff  may  proceed  against  his  bail, 
though  the  other  defendants  be  in  custody."  All  other 
means  of  enforcing  the  judgment  are  suspended.  No  action 
can  be  maintained  on  it  while  any  of  the  defendants  are  in 
custody;  because  such  action  must  be  joint,  and  the  judg- 
ment being,  for  the  present  at  least,  discharged  as  to  the 
one  in  prison,  cannot  constitute  a  joint  cause  of  action. '' 
But  the  discharge  of  one  defendant  from  custody  with  the 
consent  of  the  plaintiff,  being  a  satisfaction  of  the  judgment, 
operates  as  such  in  favor  of  his  co-defendants.^  If  several 
actions  be  prosecuted  to  judgment  against  persons  engaged 


1  Prentiss  v.  Hinton,  6  Blackf .  35  ; 
Hidden  v.  Saunders,  2  R.  I.  391;  Sto- 
ver V.  Dunn,  3  Strob.  448  ;  Nardin  v. 
Battle,  3  East.  87  ;  and  5  East.  147. 

2  Owen  V.  Glover,  2  Cranch,  C.  C. 
578;  Strode  v.  Eroadwell,  36  111.  419. 

3  Brown  v.  Kendall,  8  Allen,  209. 

*  State  V.  Richardson,  18  Ala.  109; 
Hex  V.  Woolfe,  1  ChittyR.  401;  Rex 


V.  Wade,  Skin.  R.  12;  The  King  v. 
Woolf,  2  Barn.  &  Aid.  G09. 

^  Fassett  v.  Tallmadge,  15  Abb.  Pr. 
205;  Bankv.  Beale,  7  Bosw.  till. 

6  Penn  v.  Remsen,  24  How.  P.  503. 

'  Chapman  v.  Hatt,  11  Wend.  41; 
Clark  D.  Clement,  6  T.  R.  525;  Kas- 
son  V.  People  44  Barb.  347. 

s  Whiting  &  Stark  v.  Beebe,  7  Eng. 
421;  Lovejoy  u .  Murray,  3  Wall.  1. 

477 


g §477-478  LAW  OF  judgments.  [Chap.  XX. 

in  committing  the  same  act  of  trespass,  the  discharge  by 
plaintiff  of  the  defendant  in  either  jndgment  satisfies  all  the 
judgments.  "The  plaintiff  in  the  judgment  was  entitled  to 
but  one  satisfaction  for  the  injuVy  which  he  had  sustained 
by  the  trespass  committed  by  the  defendants  in  the  judg- 
ments, and  that  he  has  had  by  the  imprisonment  of  one  de- 
fendant and  his  discharge  therefrom."'  An  attorne}-  at  law, 
having  no  authority  as  such  to  satisfy  a  judgment  without 
full  payment,  cannot  authorize  the  discharge  of  a  defendant 
taken  in  execution.  ^ 

§  478.  By  Sale  under  Execution. — In  some  States,  a 
sale  of  property  under  execution,  until  vacated  or  set  aside, 
is,  to  the,  extent  of  the  sum  realized,  an  absolute,  irrevocable 
satisfaction  of  the  judgment;  and  if  the  law  provide  that  in 
case  the  purchaser's  title,  through  an}^  defect,  fail,  he  may 
have  an  action  against  the  defendant  in  execution,  the  rule 
is  the  same.  The  judgment  cannot  be  revived.  The  pur- 
chaser must  pursue  the  remedy  given  by  the  statute.  He 
cannot  proceed  by  action  on  the  judgment.  ^  If  the  plaintiff 
proceed  under  a  valid  judgment  but  upon  void  process,  and 
thereby  produce  a  satisfaction  of  his  judgment,  he  may  on 
account  of  the  void  character  of  the  process,  be  compelled  to 
restore  to  the  defendant  for  the  property  taken  under  the  exe- 
cution, or  to  account  for  the  proceeds  thereof.  In  such  case 
it  is  evident  that  the  satisfaction  of  the  judgment  has  been 
produced  without  any  gain  to  the  plaintiff,  or  any  loss  to  the 
defendant.  The  former  may,  therefore,  on  motion,  made  to 
the  court  wherein  the  judgment  was  rendered,  have  the 
satisfaction  set  aside,  and  be  allowed  a  new  and  regular 
execution  with  which  to  enforce  his  judgment.''  But  the 
execution,  judgment  and  sale  may  all  be  perfectly  regular, 


1  Kasson  v.  People,  44  Baib.  347. 

^  Jackson  v.  Bartlett,  8  Johns.  361; 
Kellogg  V.  Gilbert,  10  Johns.  220; 
Simonton  v.  Barrell,  21  Weud.  362. 

^  Halcombe  u.  Loudermilk,  3  Jones, 
N.  C.  491. 

^Stoycl  V.  Cady,  4  Day,  225;  Ar- 
nold V.  Fuller,  1  Ohio,  466.  The  rule 
mentioned  in  the  text  seems  to  extend 
to  all  cases  where  the  defendant  had 

478 


title,  and  through  some  irregularity 
in  the  proceedings,  it  was  not  divest- 
ed. He  can  not  retain  the  thing  sold, 
nor  reqiiiro  plaintiff  to  account  to 
him  for  it,  and  at  the  same  time  in- 
sist on  the  satisfaction  of  the  judg- 
ment. Townsend  v.  Smith,  20  Tex. 
465;  Tate  v.  Anderson,  9  Mass.  92; 
Gooch  V.  Atkins,  14  Mass.  379;  Ladd 
V.  Blunt,  4  Mass.  402. 


Chap.  XX.]      SALE  UNDER  EXECUTION.  2478 

but  the  defendant  may  have  no  interest  whatever  in  property 
sold.     In  such  case  if  the  plaintiff  be  the  purchaser,  a  satis- 
faction is  also  produced  without  any  resulting  benefit  to  the 
plaintiff,  or  any  detriment  to  the  defendant.     The  question 
then   arises,   is  this   satisfaction   irrevocable;   or   may  the 
plaintiff  have   it   vacated,    and   procure  a  new  execution? 
Upon  this  question  the  authorities  are  quite  evenly  divided 
and  are  clearly  irreconcilable.     On  the  one  hand,  it  is  in- 
sisted that  as  "the  maxim  caveat  emptor  applies  to  all  pur- 
chasers at  sheriff's  sales,"  the  purchaser  takes  all  risks;  and, 
therefore,  that  he  cannot  have  the  sale  and  the  satisfaction 
thereby  produced,  vacated  on  account  of  the  failure  of  the 
defendant's  title. ^     On  the  contrary,  it  is  claimed  that  "the 
doctrine  of  caveat  emptor,   has  its  legitimate  force  in  pre- 
cluding any  idea  of  warranty  by  the  defendant  in  execu- 
tion, or  by  the  sheriff;"  and,  therefore,  that  it  interposes  no 
obstacle  to  prevent  the  plaintiff  from  obtaining  that  relief  to 
which  upon  principles  of  natural  justice,  he  seems  entitled."' 
The  cases,  as  we  have  shown  are  of  two  classes,  the  first 
class  comprising  cases  where  the  purchaser  fails  to  obtain 
title  owing  to  some  irregularity  in  the  execution  or  the  pro- 
ceedings thereunder,    and   the   second  class  including   all 
those  cases  where  the  failure  of  title  results  from  the  fact, 
that  the  defendant  had  no  title  to  be  transferred.     Inde- 
pendent of  statutory  provisions,  it  seems  to  be  clear  that 
the  purchasing  creditor  is  entitled  to  relief  in  cases  of  the 
first  class;  while  of  cases  of  the  second  class,  nothing  can 
be  said  except  that  the  authorities   are  inconsistent   and 
quite  evenly  balanced,  with,  perhaps,  a  slight  preponder- 
ance also  in  favor  of  granting  relief.     In  California  the 
Code  of  Procedure  provides  that:     "If  the  purchaser  of 
property  at  sheriff's  sale,  or  his  successor  in  interest,  fail  to 
recover  possession  in  consequence  of  irregularities  in  the 
proceedings  concerning  the  sale,  or  because  the  property 
sold  was  not  subject  to  execution  and  sale,  the  court  having 


1  Vattier  v.  Lytle's  Ex.,  G  Ohio, 
482;  Freeman  v.  Caldwell,  10  Watts, 
10;  Salmon  '.'.  Price,  13  Ohio,  383; 
HoUister  v.  Dillon,  4  Ohio  St.  205; 
Lansing  v.  Quackenbush,  5  C(3w.  38. 


sRitter  v.  Henshaw,  7  Iowa,  98; 
Tudor  r.  Taylor,  26  Vt.  144;  Adams 
V.  Smith,  5  Cow.  280;  see  also  War- 
ner V.  Helm,  1  Gilm.  220. 

479 


§g478-479  LAW  OF  judgments.  [Chap.  XX. 

jurisdiction  thereof  must,  after  notice  and  on  motion  of  such 
party  in  interest,  revive  the  original  judgment."^  This 
statute  clearly  provided  for  all  cases  which  we  have  referred 
to  as  of  the  first  class;  and  it  has  recently  been  adjudged  to 
extend  over  cases  of  the  second  class.  In  the  case  of 
Cross  V.  Zane,  decided  by  the  Supreme  Court  of  that  State,' 
the  plaintiff  took  out  execution,  and  levied  it  upon  lands  in 
which  defendant  had  no  interest,  and  became  the  purchaser 
at  the  sale.  On  ascertaining  that  defendant  had  no  inter- 
est in  the  property,  plaintiff  petitioned  the  court  to  set  aside 
the  sale  and  revive  the  judgment.  The  Supreme  Court 
reversing  the  judgment  of  the  District  Court,  which  had  de- 
nied the  petition,  said :  "If  the  controversy  here  were  to  be 
determined  by  the  application  of  the  general  principles  of 
law,  there  would  certainly  be  found  to  be  an  irreconcilable 
conflict  between  the  adjudicated  cases  upon  the  point. 
But,  as  we  construe  the  statute,  the  case  is  covered  by  the 
provision  that  the  original  judgment  may  be  revived  'lohen 
the  property  soldtoas  not  subject  to  execution  and  sale.'  The 
statute,  being  remedial  in  its  character,  is  to  receive  a  lib- 
eral construction,  and  we  think  that  where,  as  here,  the 
property  sold  was  not  the  property  of  the  defendant  in  exe- 
cution, but  wholly  that  of  a  stranger,  it  amounted  to  a  sale 
of  property  not  subject  to  execution  and  sale,  within  the  in- 
tent of  the  act." 

§  478\  Relief  in  Equity  after  Sale  on  Execution.— 
Whether  on  a  purchase  of  lands  to  which  defendant  had 
no  title,  the  plaintiff  as  purchaser  may  obtain  relief  at  law 
or  not,  it  seems  to  be  generally  conceded  that  he  may  be  re- 
lieved in  equity  f  and  relief  has  sometimes  been  denied  at 
law  on  the  sole  ground  that  the  more  proper  forum  is  a 
court  of  equity."  * 

^479.  Other  Means  of  Satisfaction. — Every  judgment 
continues  in  force  until  paid  to  or  released  by  plaintiff,  dis- 

sSee  708   Code   C.   P.    A   Bimilar    Henry  t).  Keys,  5  Sneed.  489;  Price  v. 


statute  exists  in  Tennessee.  Edde  v. 
Co\\-an,  1  Snecd.  295. 

'  Decided  January  24,  1874,  not  yet 
reported. 

1  Warner    v.    Helm,  1   Gilm.    220; 

480 


Boyd,  1  Dana,  43G;  Jones  v.  Henry, 
3  Litt.  428;  Muir  v.  Craig,  3  Blackf. 
293. 

2 Lansing  u.  Quackenbush,  5  Cow. 
38.       . 


Chap.  XX.]     PKOCEEDINGS  AFTER  SATISFACTION.         §§479-480 

charged  by  proceedings  under  execution,  or  under  acts  for 
the  relief  of  insolvent  debtors,  or  until  barred  by  the  stat- 
utes of  limitation,  or  merged  in  another  judgment.  Plaintiff 
may  waive  his  rights  in  one  instance  '-without  prejudicing 
his  claims  in  others.  Thus,  A.,  having  two  judgments 
against  B,,  sold  land  of  the  latter  under  the  junior  judg- 
ment, producing  a  sum  more  than  sufficient  for  its  satisfac- 
tion. He  made  no  claim  for  the  surplus  under  the  lien  of 
his  elder  judgment,  but  permitted  it  to  be  taken  by  another 
creditor.  The  court  held  that  he  did  not  thereby  lose  his 
judgment,  but  might  proceed  to  satisfy  it  out  of  B.'s  other 
property.^  If  the  defendant  deliver  to  the  plaintiff  a  prom- 
issory note  of  third  parties,  iu  satisfaction  of  the  judgment 
which  note  is  void  because  fraudulently  obtained,  it  is  not 
necessary  for  plaintiff  to  return  the  note  before  taking  out 
execution.  2  If  an  entry  of  satisfaction  on  the  record  was 
made  in  consideration  of  a  note  which,  by  mistake,  was  for 
too  small  a  sum,  an  action  may  be  sustained  for  the  unsatis- 
fied part.^ 

PAET  IV. 

§  480.  Proceedings  after  Satisfaction.  —  While  the 
courts  have  generally  protected  all  third  persons,  acting 
hona  fide  and  without  notice,  on  their  confidence  in  judicial ' 
records,  from  "all  secret  vices  and  infirmities"  in  the  pro- 
ceedings of  the  courts  or  of  their  ofiicers,  this  protection,  it 
seems,  has  not  been  extended  so  as  to  shield  purchasers 
from  the  perils  of  secret  satisfactions  of  judgments.  The 
laws  usually,  if  not  universally,  provide  that  the  entry  of 
satisfaction  may  be  made  on  the  docket,  and  that  the  execu- 
tion with  a  memoranda  of  the  proceedings  under  it  shall  be 
returned  to  court,  and  thus  lead  purchasers  to  expect  that 
if,  from  an  examination  of  the  dockets  and  papers  on  file 
iu  the  case,  no  release  or  satisfaction  of  the  judgment  is 
disclosed,  that  none,  in  fact,  exists.  Principles  of  public 
policy  are  said  to  require  that  bidders  at  judicial  sales 
should  have  confidence  in  the  titles  there  to  be  acquired ; 
and  that,  in  order  to  create  such  confidence,  they  should 

1  Bank  of  Penn.  v.  Winger,  1  Raw.  I      2  Mitchell  v.  Hockett,  25  Cal.  539. 
295.  I      sCauiield  v.  Miller,  13  Grav,  274. 

(31)  ..  481 


g4S0  LAW  OP  JUDGMENTS.  [Chap.  XX. 

not  be  prejudiced  by  any  defect  not  known  to  them,  nor 
discoverable  by  examining  the  record.     Therefore,  it  seems 
that  good  faith  toward  purchasers,  as  well  as  the  principles 
of  public  policy  recognized  and  enforced  for  the  benefit  of 
the  whole  community,  demands  that  purchasers  and  other 
third  persons  acting  in  good  faith  should  not  be  injured 
through  secret  releases,  in  order  to  preserve  the  interests 
of  those  persons  whose  negligence  in  not  making  those  re- 
leases apparent  on  the  record,  produced  tlie  mistake  of  fact 
under  which  the  purchaser  acted.     Nevertheless,  we  have 
the  authority  of  many  cases  showing  that  a  sale  or  other 
proceeding  under  a  satisfied  judgment  is  void  under  all  cir- 
cumstances.^    The  reasoning  on  which  these  cases  are  based 
was  thus  stated  by  the  Court  of  Appeals  of  the  State  of  New 
York  :  "The  judgment  was  the  sole  foundation  of  the  sher- 
iff's power  to  sell  and  convey  the  premises,  and  if  the  judg- 
ment was  paid  when  he  undertook  to  sell  and  convey,  his 
power  was  at  an  end,  and  all  his  acts  were  without  author- 
ity and  void.     The  purchaser  under  a  power  is  chargeable 
with  notice,  if  the  power  does  not  exist,  and  purchases  at 
his  peril. "^     There  are,  however,  a  few  authorities  tending 
to  establish  the  proposition  that  a  sale  under  a  judgment 
satisfied  in  fact,  but  not  of  record,  is  valid  if  made  to  a 
-stranger  to  the  execution  having  no  notice  actual  or  con- 
structive of  its  satisfaction.* 


1  Swan  V.  Saddlemire,  8  Wend.  676; 
Lewis  V.  Palmer,  6  Weud.  3GS;  Wood 
V.  Colvin,  2  Hill,  566  ;  State  v.  Sal- 
yers,  19  lud.  432  ;  Neilson  v.  Neilson, 
5  Barb.  565  ;  Hammett  v.  Wyman,  9 
Mass.  138  ;  Carpenter  v.  Stillwell,  11 

482 


N.  Y.  61;  Laval  v.  Kowley,  17  Ind.  36. 

2  Craft  V.  Merrill,  U  N.  Y.  456. 

3  Morton  v.  GrcDada,  8  S.  &  M.  773  ; 
Doeti.  Ingersoll,  11  Id.  249;  Banks  v. 
Evans,  10  Id.  35;  Jackson  u.  Cadwell, 
1  Cow.  622. 


Cliap.    XXI.]  PvEVERSED  JUDGMENTS.  2481 


CHAPTER  XXI. 

EEVERSED  JUDGMENTS. 

§  481.  Effect  of  Reversal. 

§  482.  Restitution  between  the  Parties. 

§  483.  Cases  denying  liestitutiou  between  the  Parties. 

§  484.  Cases  denying  Restitution  from  third  persons. 

§  481,  Effect  of. — The  reversal  of  a  judgment  by  any 
competent  authority,  restores  the  parties  litigant  to  the 
same  condition  in  which  they  were  prior  to  its  rendition. 
The  judgment  reversed  becomes  mere  waste  paper;  and  the 
parties  to  it  are  allowed  to  proceed  in  the  court  below  to 
obtain  a  "final  determination  of  their  rights,"  in  the  same 
manner,  and  to  the  same  extent,  as  if  their  cause  had  never 
been  heard  or  decided  by  any  court/  Neither,  in  the  sub- 
sequent prosecution  of  the  cause,  can  suffer  detriment,  nor 
receive  assistance  from  the  former  adjudication.  If  a  judg- 
ment of  reversal  be  reversed  by  a  superior  tribunal,  this 
last  reversal  reinstates  the  original  judgment.^  A  reversal 
by  agreement,  or  upon  confession  of  errors,  is  as  potent  as 
though  it  were  the  result  of  the  most  persistent  litigation.  ^ 
A  judgment  having  been  recovered  in  a  justice's  court,  the 
defendant  paid  it;  but,  afterwards,  he  appealed  and  ob- 
tained a  reversal,  on  technical  grounds,  by  which  he  was 
awarded  restitution  and  his  costs  of  appeal.  He  did  not 
collect  the  sum  to  which  he  was  entitled  under  the  judg- 
ment of  restitution.  The  plaintiff  commenced  another 
action  for  the  same  cause.  The  defendant  then  pleaded,  as  a 
bar,  the  former  judgment  and  its  payment.  The  court  held 
that,  by  the  proceedings  on  appeal,  in  the  first  suit,  the 
judgment  therein  had  been  extinguished;  that  the  payment 


1  Kagan  v.  Cujler,  24  Geo.  400. 

"Simmons  v.  Price,  18  Ala.  405; 
Argenti  v.  San  Francisco,  30  Cal.  458; 
Stearns  v.  Aguirre,  7  Cal.  443;  Phelan 


V.  San  Francisco,  9  Cal.  IG;  Mead  v. 
Mead,  18  Barb.  578. 

3Magliee  v.  Collins,  27  Ind.  83. 

483 


g §481-182  LAW  OF  JUDGMENTS.  [Chap.  XXI. 

mado  in  the  former  suit  was  on  the  judgment,  and  not  on 
the  antecedent  debt;  that  such  debt  was  still  in  force,  un- 
affected by  the  reversed  judgment  and  its  payment;  and 
that  the  defendant  could  plead  his  judgment,  obtained  on 
appeal,  as  an  off-set,  but  not  as  a  bar,  in  the  present  action.^ 

§  482.  Restitution  between  the  Parties. — Upon  the  re- 
versal of  the  judgment  against  him,  the  appellant  is  entitled 
to  the  restitution,  from  the  respondent,  of  all  the  advantages 
acquired  by  the  latter  by  virtue  of  the  erroneous  judgment. 
The  successful  appellant  is  entitled  to  a  restitution  of  every- 
thing still  in  possession  of  his  adversary,  in  specie;  not  the 
value,  but  the  thing.-  If  money  has  been  collected  by  the 
plaintiff  in  the  judgment,  under  execution,  an  action  lies 
against  him  to  recover  it  back.  ^  The  statute  of  limitations 
commences  running  in  relation  to  such  actions  in  favor  of 
respondent  from  the  time  of  the  reversal. *  If  the  plaintiff 
purchases  the  property  of  the  defendant  at  a  sale  under  a 
judgment  or  decree,  his  title  will  be  defeated  by  a  subse- 
quent reversal.^  But  a  subsisting  judgment,  though  after- 
wards reversed,  is  a  sufficient  justification  for  all  acts  done 
by  plaintiff  in  enforcing  it,  prior  to  the  reversal.  Thus  if 
the  defendant  be  taken  in  execution,  the  subsequent  reversal 
of  the  judgment  will  not  render  the  plaintiff'  liable  to  an 
action  for  false  imprisonment.  For  the  act  of  imprison- 
ment, when  directed  by  the  plaintiff,  was  sanctioned  by  a 
then  valid  judgment.^  But  the  plaintiff  on  the  reversal  is 
liable  to  an  action  to  recover  the  damages  occasioned  by  a 
sale  of  the  defendant's  property  made  under  the  judgment 
prior  to  its  reversal.  Where  the  plaintiff  has  purchased  the 
property  and  still  has  it  in  his  possession,  the  defendant 
may,  at  his  election,  affirm  the  sale  and  have  his  action  for 
damages.  An  assignee  of  a  judgment  is  not  a  stranger 
thereto.  If  he  take  out  execution  and  sell  the  defendant's 
property,  and  become  the  purchaser  thereof,  and  the  judg- 
ment be  subsequently  reversed,  he  stands  in  a  no  better  posi- 


1  Close  V.  Stuart,  4  Wend.  95. 

2  Gott  V.  Powell,  41  Mo.  -IIG. 

3  Eaun  V.  Reynolds,  18  Cal.  275. 
*  Crocker  v.  Clements,  23  Ala.  29G.  [  531 
s  Gott  V.  Powell,  -11  Mo.  416;  Eey- 

434 


nolds  V.  Harris,  14  Cal.  667;  Twogood 
i\  Franklin,  27  Iowa,  23'J. 
^  Simpson  v.  Horenbeck,  3  Lansing, 


Chap.  XXI.]        CASES  DENYING  DESTITUTION.  §§482-483 

tion  tlw,n  the  original  plaintiff  in  like  circumstances.  As 
against  such  assignee,  the  defendant  may  recover  posses- 
sion of  the  property  purchased;  or,  ratifying  the  sale  may 
recover  the  value  of  the  property  affected  thereby.^  If  a 
suit  be  brought  to  foreclose  a  lien,  and  another  lien  holder 
be  made  a  party  defendant,  and  assert  his  claim  by  cross 
bill,  and  a  decree  be  entered  under  which  a  sale  is  made  to 
the  defendant  lien  holder,  who  pays  the  monej^  into  court, 
and  the  money  is  thereupon  distributed  by  the  court  among 
all  the  lien  holders  according  to  their  priorities,  such  pur- 
chaser, though  a  party  to  the  suit,  is  protected  in  his  pur- 
chase, from  a  subsequent  reversal  of  the  decree.  ^ 

§  483.     Cases  Denying  Restitution   between  the  Par- 
ties.— We  have  stated  in  the  preceding  section,  that  a  plaint- 
iff purchasing  at  a  sale  under  his  own  execution,  is  liable  to 
the  loss  of  the  property  thus  bought,  upon  the  reversal  of 
his  judgment.  This  statement,  we  believe,  is  fully  supported 
by  the  present  state  of  the  authorities.   While  the  decisions 
directly  in  point  may  not  be  numerous,  the  expressions  made 
in  a  large  number  of  cases  show  that  the  opinion  of  the  judges 
has  been  nearly  unanimous  to   the  effect  that  the  plaintiff 
cannot,  after  the  reversal  of  his  judgment,  retain  the  prop- 
erty of  the  defendant  acquired  after  such  judgment.     But 
the  case  of  Parker  y.  Anderson  (5  T.  B.  Monr.  455),'  decided 
in  Kentucky,  nearly  half  a  century  ago,  is  authority  to  show 
"That  the  parties  to  a  judgment  or  decree  are,  equally  with 
all  others,  at  liberty  to  bid  and  purchase  property  exposed 
for  sale  under  a  judgment  or  decree,  and  there  is  the  same 
reason  for  protecting  the  same  interests  acquired  by  a  party 
under  a  purchase  as  that  of  a  stranger."     The  doctrine  thus 
laid  down  has  recently  been  recognized  and  reasserted  by 
Justice  Field,  of  the  Supreme  Court  of  the  United  States, 
in  a  case  decided  by  him  in  the  Ninth  Circuit.    In  this  case 
he  said,   "Expressions  were  cited  from  various  opinions  of 
different  judges,  to  the  effect  that,   by  the  reversal,    the 
defendant  or  unsuccessful  party  in  the  court  below  is  to 


1  Reynolds  v.  Hosmer,  45  Cal.  630; 
McJilton  u .  Love,  13  111.  486. 

2  Murphy  v.  Longworth,   14   Ohio 
S.  349. 


3  See  also  Gossom  v.  Donaldson,  18 
B.  Monr.  230. 


485 


§483  LAW  OF  JUDGMENTS.  [Cliai^.  XXI. 

be  restored  to  all  tilings  wliicli  ho  lost  by  the  erroneous 
judgment  or   decree,    and   that   protection   is   afforded  to 
strangers  at  judicial  sales  in  order  to  encourage  bidding. 
Expressions  of  this  kind  may  be  very  just  and  appropriate 
in  connection  with  the  principal  facts  of  the  special  cases 
in  which  they  are  used;  but  they  do  not  express  a  rule  ap- 
plicable in  all  cases,  or  furnish  the  true  reason  for  the  pro- 
tection extended  to  purchasers  at  judicial  sales.     The  prin- 
ciple that  the  defendant  or  unsuccessful  party  in  the  court 
below  is  to  be  restored  to  all  tilings  which  he  lost  by  the 
erroneous  judgment  or  decree,  cannot  apply  to  those  things 
the  title  of  which  may  be  transferred  by  proceedings  taken 
for  the  enforcement  of  the  judgment  or  decree  when  its  en- 
forcement is  not  stayed  pending  the  appeal.  The  restoration 
in  specie  in  such  cases  being  impossible  without  infraction 
of  the  principle  by  which  judgments  of  courts  are  upheld  and 
enforced,  it  follows  that  the  right  which  the  reversal  gives 
must  be  that  of  action  to  recover  an  equivalent  for  the 
lost  thing.    And  perhaps  the  rule  may  be  stated  thus :  That 
the  defendant  or  unsuccessful  party  in  the  court  below  is 
to  be  restored,   by  reversal,  to  all   things   which   he  lost 
by  the  erroneous  judgment  or  decree,  if  the  title  to  them 
has  not  passed  by  the  previous  enforcement  of  the  judg- 
ment or  decree,  and  in  such  case  he  is  to  have  a  right  of 
action  for  a  money  equivalent.     The  rule,  as  thus  stated, 
would  leave  the  parties  to  take  advantage  of  the  proceedings 
for  the  enforcement  equally  with  third  persons.     There  is 
no  reason  why  they  should  not  have  the  same  protection 
extended  to  them  as  to  strangers.     The  judgment  or  decree 
is  equally  binding  upon  all,  and  should  be  equally  efficacious 
for  protection.    When  the  judgment  or  decree  directs  a  sale 
of  property  of  the  defendant,  it  may  be  regarded  as  a  power 
of  attorney  to  the  officer  charged  with  its  execution  created 
by  the  law,  and,  like  any  other  power,  sufficient  to  give  valid- 
ity to  the  acts  of  the  officer  until  the  power  is  revoked  by 
the  reversal.     There  is  no  prohibition  in  the  law,  or  objec- 
tion  in   the   reason  of   the  thing,   against   a   party  taking 
advantage  of  the  proceedings  had  for  the  enforcement  of  the 
judgment  which  he  has  recovered.     Strangers  are  protected, 
not  because  a  contrary  rule  would  discourage  bidding,  but 

486 


Cliap.  XXI.]  i:estitution  fkom  third  persons.     g§483— 1S4 


because  tliey  have  a  right  to  rely  upon  the  validity  of  the 
judgment,  and  invoke  its  protection  for  all  acts  done  under 
it  whilst  it  is  in  force,  and  for  the  rights  they  have  acquired 
thereby."  Judge  Field  then  proceeded  to  quote  at  length 
from  the  opinion  of  the  court  in  Parker  v.  Anderson,  and 
added  after  such  quotation,  that  "With  the  views  thus  forci- 
bly expressed  we  fully  concur. 


"1 


g  484.  Restitution  from  Third  Persons. — The  law  per- 
mits judgments  and  decrees  to  be  enforced,  during  the  time 
in  which  appeals  may  be  taken,  and  also  wdiile  appeals  are 
pending  and  undetermined,  unless  some  bond  or  other 
security  given  as  required  by  law,  operates  to  stay  the  pro- 
ceedings. Courts  have  alwaj'S  construed  the  law  so  as  to 
impart  confidence  in  judicial  sales,  by  protecting  purchasers 
thereat,  from  those  ill  consequences  which  the  latter  might 
suffer  if  the  title  acquired  by  them  depended  upon  the  free- 
dom of  prior  proceedings  from  all  errors  of  law.  It  was 
thought  to  be  unjust  to  require  purchasers  to  sutler  for 
errors  committed  by  the  judges  of  the  subordinate  courts, 
and  impolitic,  by  making-  such  a  requirement,  to  discourage 
bidders  at  such  sales,  and  thereby  to  expose  large  amounts 
of  property  to  the  hazard  of  being  sacrificed  at  nominal 
prices.  Therefore,  it  is  a  rule,  nowhere  disputed,  that  third 
persons  purchasing  at  a  sale,  made  under  the  authority  of  a 
judgment  or  decree,  not  suspended  by  any  stay  of  proceed- 
ings, thereby  acquire  rights  which  no  subsequent  reversal 
of  such  judgment  or  decree  can,  in  any  respect,  impair.^ 


1  South  Fork  Caual  Co,  v.  Gordon, 
2  Abb.  U.  S.  479,  488.  Judge  Field, 
by  whom  the  above  case  was  decided, 
has  siuce  in  Galpin  v.  Page,  deter- 
mined by  the  Supreme  Court  of  the 
U.  S.,  at  Oct.  Term,  1873,  showed 
that  he  is  fuUj'  conscious  that  the 
principles  announced  by  him,  and 
quoted  above  in  the  text,  are  against 
the  weight  of  the  authorities. 

2Reynoldi^  v.  Harris,  U  Cal.  6G7; 
Farmer  tj.  Rogers,  10  Cal.  335;  Hi;b- 
bellu.  Broiidwell's  Heirs,  8  Ohio,  120; 
Hanschild  v.  Stafford,  27  Iowa,  301; 
Frost  V.  McLeod,  19  La.  An.  69;  Lov- 


ett  V.  German  Reformed  Church,  12 
Barb.  67;  Coster  v.  Peters,  7  Eob. 
386;  4  Abb.  Pr.  N.  S.  53;  Pitfield  v. 
Gazzam,  2  Ala.  325;  Gott  v.  Powell, 
41  Mo.  416;  Dorsey  v.  Thompson, 
37  Md.  25;  Feaster  v.  Fleming,  56 
111.  457;  Fergus  v.  "VVoodworth,  44 
111.374;  Wardu.  Hollister,  14  Md.  158; 
Stroud  V.  Casey,  25  Tex.  740;  Stinson 
».  Pioss,  51  Me.  556;  Jessup  v.  City 
Bank,  15  Wis.  604.  Notwithstanding 
the  numerous  authorities  to  the  con- 
trary, it  was  said  in  a  case  decided  in 
New  York,  to  be  conceded  that  the  re- 
versal of  a  decree  invalidates  a  sale 

487 


g4:S4  LAW  OF  JUDGMENTS.  [Chap.    XXI. 

Nor  is  tlio  fact  that  the  purchaser  was  notified  not  to  pur- 
chase, because  the  judgment  was  claimed  to  be  erroneous, 
and  that  an  attempt  would  be  made  to  procure  its  reversal, 
of  any  consequence.'     In  Illinois,  while  it  is  conceded  that 
the  purchase  by  the  plaintiff  in  the  judgment,  is  subject  to 
be  annulled  by  a  subsequent   reversal,  the  assignee  from 
plaintiff,  of  the  certificate  of  purchase,  under  an  assignment 
made  before  any  reversal,  is  held  to  occupy  as  favorable  a 
position  as  if  he,  instead  of  being  an  assignee,  were  the 
original  purchaser  at  the  sale.'     We   have  found  no  case 
which  either  affirms  or  denies  this  extension  of  the  rights 
of    third    persons    purchasing,    to    assignees    of    the   par- 
ties  to   the  suit.     The  original   rule  seems  to  have  been 
adopted  chiefly,  if  not  exclusively,  from  considerations  of 
public  policy.     None  of  those  considerations  require  this 
extension.     Neither  the  interests  of  the  community  in  gen- 
eral, nor  of  the  class  whose  property  is  to  be  sold  under 
execution,  can  be  in  any  degree  shielded  from  sacrifice  by 
this  extension,  which,  after  the  sale  has  been  made,  and  the 
sacrifice  has  been  realized  or  avoided,  merely  authorizes 
the    purchaser    to   transfer   a    better    title    than    he   ever 
acquired. 

In  Iowa,  a  statute  provides  that  property  acquired  by  a 
bona  fide  purchaser,  shall  not  be  affected  by  a  future  re- 
versal of  the  judgment.  A  purchase  at  an  execution  sale 
having  been  made  by  the  attorney  of  the  plaintiff,  and  the 
judgment  being  afterwards  reversed,  the  question  arose 
whether  an  attorney  of  the  plaintiff  could  be  a  bona  fide  pur- 
chaser within  the  meaning  of  the  statute.  The  court  held 
that  "  a  purchase  of  land  at  a  sheriff's  sale  by  the  plaintiff 
in  execution  or  his  attorney,  with  actual  knowledge  of  the 
pending  appeal,  is  at  the  peril  of  the  purchaser,  and  the 
party  or  his  attorney  thus  buying  is  not  within  the  meaning 
of  the  statute  a  bona  fide  purchaser.'"  It  is  further  in- 
timated by  the  judge  delivering  the  opinion  of  the  court, 
that  he  doubts  whether  any  person  having  notice  of  a  pend- 
ing appeal,  is  protected  by  this  statute  as  a  bona  fide  pur- 


made     thereunder.      Wambaugli    v. 
Gates,  8  N.  Y.  144. 

1  Irwin  ;;.  Jeflfers,  3  Ohio  S.  389. 

483 


SGuiteau  v.  Wiselej',  47  111.  433. 
sTwogood  i;.  Franklin,   27   Iowa, 
239. 


Cliap.    XXI.]      RESTITUTION  FROM  THIRD   PERSONS.  §484 

cliaser.  This  statute  is,  undoubtedly,  a  mere  declaration 
of  the  previous  common  law  rule;  and,  like  that  rule,  was 
adopted  from  a  conviction  of  the  policy  of  encouraging 
hona  fide  bidding  at  involuntary  sales.  The  fact  of  notice 
of  the  pendency  of  an  appeal,  therefore,  cannot  be  material 
in  determining  whether  a  purchaser  should  be  protected  by 
the  statute.  The  taking  of  an  appeal  is  a  matter  always  eas- 
ily ascertained  by  an  examination  of  the  papers  on  file  in  the 
clerk's  office ;  and,  if  knowledge  in  relation  to  this  fact  af- 
fected the  rights  of  purchasers,  no  hardship  would  result 
from  requiring  them  to  make  such  an  examination.  But 
the  greater  the  number  of  persons  having  information  of 
the  appeal,  the  fewer,  according  to  the  views  of  this  judge, 
would  be  the  number  qualified  to  become  hona  fide  purchas- 
ers, and  the  greater  would  be  the  diminution  of  that  compe- 
tition which  the  statute  was,  no  doubt,  designed  to  encour- 
age. We  can  see  no  reason  why  an  attorney  may  not  be 
a  hona  fide  bidder.  If  no  stay  of  execution  is  procured  by 
the  defendant,  the  sale  may,  at  the  option  of  the  plaintiff, 
proceed,  though  an  appeal  be  taken  and  every  person  in  the 
State  notified  of  that  fact.  The  interests  of  defendants  in 
general  requires  that  everyhody  may  bid.  If  the  attorney  is 
prohibited  or  discouraged  from  bidding,  the  defendant  is 
thereby  injured  by  the  decrease  in  competition.  If  an  at- 
torney complies  with  his  bid,  by  payment  out  of  his  own 
funds,  on  what  grounds  is  it  less  a  hona  fide  bid  than  if  made 
by  some  other  person  ?  The  title  of  plaintiff  is  held  to  be 
liable  to  be  divested  by  a  reversal,  because  his  purchase  is 
paid  for  by  a  judgment  which  he  ought  not  to  have  had,  and 
because  it  is  neither  just  to  the  defendant,  nor  conducive  to 
a  good  public  policy,  that  the  advantages  secured  by  an  er- 
roneous adjudication  should  be  longer  retained.  But  an 
attorney  who  has  paid  the  amount  of  his  bid,  with  or  with- 
out notice  of  an  appeal,  stands  in  a  different  position  from 
that  of  a  party  to  the  suit,  and  in  a  similar  position  to  that 
of  a  third  person  purchasing ;  and  he  ought,  therefore,  to 
be  subjected  to  none  of  the  perils  visited  on  the  former,  and 
entitled  to  all  the  privileges  secured  by  law  to  the  latter.  It 
is  clear  that  an  attorney  is  as  much  affected  by  the  irregu- 
larity of  process  which  he  takes  out  as  his  client  is,  and 

489 


§484  LAW  OF  JUDGMENTS.  [Chap.   XXI. 

that  if  the  irregularity  bo  such  as  to  avoid  a  sale  made  to 
the  clieut,  it  will  equally  avoid  a  sale  made  to  the  attorney.' 
On  this  ground  it  has  been  assumed  to  be,  and  probably  is, 
well  settled  that  the  plaintiff's  attorney,  if  a  purchaser  at 
the  sale,  is  liable  to  lose  his  title  by  the  reversal  of  the  judg- 
ment." But  notwithstanding  these  decisions  we  cannot  avoid 
thinkiug  that  there  is  a  vast  difference  between  an  irregular- 
ity, in  which  an  attorney  participates,  and  a  perfectly  regu- 
lar proceeding,  in  which  the  only  vice  is  an  honest  error  of 
law  made  by  the  court;  and  that  this  difference  ought  to  lead 
to  a  corresponding  difference  in  the  law  applicable  to  the 
two  cases. 

1  Siinonds  v.  Catlin,  2  Cai.  G3.  j  pin  v.  Page,  S.  C.  of  U.  S.,  Oct.  Term, 

2  Stroud  V.  Casey,  25  Tex.  754;  Gal- 1  1873. 

490 


Chap,  XXII.]  GROUNDS  OP  RELIEF.  §485 


CHAPTER  XXII. 

BELIEF  IN  EQUITY,  FEOM  JUDGMENTS  AND  DECEEES. 

§  485.  General  Grounds. 

g  486.  General  Grovmds.  • 

§  487.  Error  and  Irregularity. 

§  488.  Classification. 

§  48D.  Fraud. 

§  490.  Fraudulent  Alteration. 

§  491.  Fraudulent  Concealment. 

§  492.  Taking  Judgment  Contrary  to  Agreement. 

§  493.  Procured  by  Concealment. 

§  494.  Procured  by  Threats. 

§  495.  Judgments  without  Service  of  Process. 

§  49G.  Judgments  against  Privileged  Persons. 

§  497.  Where  there  is  a  Remedy  on  Motion. 

§  498.  Merits  must  be  shown. 

§  499,  Unauthorized  Appearance  by  Attorney. 

§  500.  Unauthorized  Act  of  Employed  Attorney. 

§  500. a  Mistake  and  Accident. 

§  501 .  Defenses  cognizable  at  Law  and  in  Equity, 

§  502.  Neglect  in  presenting  Legal  Defenses. 

§  503.  Want  of  Diligence. 

§  501,  Receipt  or  Release. 

§  505.  Executors  and  Administrators. 

§  505.a  Judgment  against  a  Trustee. 

§  50G.  All  known  Defenses  must  be  presented  before  Judgment. 

§  507.  Discovery  after  Judgment. 

§  508.  Neglect  of  Counsel. 

§  509 .  Rights  of  Third  Persons, 

§  510.  Innocent  Purchasers. 

§  511.  After  Motion  at  Law. 

§  512.  Parties  Entitled  to  ask  for  Relief. 

§  513.  Infants. 

I  514.  Relief  not  granted  in  absence  of  Injury, 

g  515.  Time  in  which  Application  may  be  Made, 

§  516.  Complainant  must  do  Equity. 

§  485.  Grounds  of  Relief  in  General, — In  respect  to  the 
general  grounds  upon  which  the  interposition  of  courts  of 
equity  may  be  successfully  invoked  to  obtain  relief  from 
judgments  or  decrees,  there  seems  to  be  a  perfect  unanimity 
of  opinion.  The  actual  adjudication  of  any  question  is  in 
fact  final,  under  all  circumstances,  unless  corrected  by  some 
ax>pellate  tribunal;  and  is  never  subject  to  re-examination 
in  any  other  than  an  appellate  court,  upon  any  issue  of  law 

491 


§485  LAW  OP  JUDGMENTS.  [Chap.  XXII. 

or  of  fact,  nor  upon  the  sole  ground  that  the  former  decision 
is  contrary  to  equity  or  good  conscience.  It  is  always  a 
condition  precedent  to  the  proper  action  of  a  court  of  equity, 
in  interfering  with  a  judgment  or  decree  not  before  it  upon 
appeal,  that  facts  be  disclosed  estal)lisliing  that  the  matter 
now  in  the  form  of  an  adjudication,  is,  inlruth,  without  any 
fault  of  the  party  seeking  to  avoid  its  effect,  a  determina- 
tion in  which  he  could  not  present  his  cause  of  action,  or 
his  grounds  of  defense,  as  the  case  may  be,  to  the  consid- 
eration of  the  court.  These  principles  can  be  best  illus- 
trated and  supported  by  reference  to  some  of  the  opinions 
expressed  by  the  highest  authorities  both  in  England  and 
in  the  United  States. 

"I  do  agree  the  court  ought  to  be  very  tender  how  they 
help  any  defendant  after  a  trial  at  law  in  a  matter  where 
such  defendant  had  an  opportunity  to  defend  himself. "i 
According  to  the  opinion  of  Lord  Redesdale,  ' '  The  inatten- 
tion of  parties  in  a  court  of  law,  can  scarcely  be  made  the 
subject  of  interference  in  a  court  of  equity.  There  may  be 
cases  cognizable  at  law,  and  also  in  equity,  and  of  which 
cognizance  cannot  be  eflfectually  taken  at  law,  and  there- 
fore equity  sometimes  interferes;  as  in  cases  of  complicated 
accounts  where  the  party  has  not  made  defense  because  it 
was  impossible  for  him  to  do  so  efifectually  at  law.  So, 
where  a  verdict  has  been  obtained  by  fraud,  or  where  a 
party  has  possessed  himself  of  something,  by  means  of 
which  he  has  an  unconscientious  advantage  at  laAv,  which 
equity  will  either  put  out  of  the  way,  or  restrain  him  from 
using  it."-  "The  rule  allowing  parties  to  appeal  to  chan- 
cery against  a  judgment  in  any  court  is  of  great  strictness 
and  inflexibility;  and  it  is  necessary  that  it  should  be  so,  as 
otherwise  the  jurisdiction  of  that  court  would  soon  sup- 
X^lant  all  other  tribunals.  A  court  of  equity,  therefore,  will 
not  lend  its  aid  unless  the  party  claiming  its  assistance  can 
impeach  the  judgment  by  facts,  or  on  grounds  of  which  he 
could  not  have  availed  himself  at  law,  or  was  prevented 
from  doing  it  by  fraud,  or  accident,  or  the  act  of  the  oppo- 


1  By  the  Master  of  the  Eolls  in 
G aiusborough  v.  Giffurd,  2  P.  Wms. 
421. 

492 


-  Bateman  v.  Willoe,  1  Sclu  &  Lef. 


201. 


Chap.  XXII.]      GENER.iL   GROUNDS  OF   RELIEF.  §§485-486 

site  party,  unmixed  witli  negligence  or  fault  on  liis  own 
part."^  "When  a  party  has  once  an  opportunity  of  being 
heard  and  neglects  to  do  so,  he  must  abide  the  conse- 
quences of  his  neglect.  A  court  of  equity  cannot  relieve 
him  though  the  judgment  is  manifestly  wrong." ^  "The 
general  rule  is,  that  where  there  is  a  defense  at  law  chancery 
will  not  grant  relief,  unless  complainant  can  show  that,  ow- 
ing to  particular  circumstances,  not  arising  from  his  own 
neglect  or  inattention,  he  has  been  dej)rived  of  the  benefit 
of  his  defense  at  law. "  ^  The  general  rule  is,  that  relief  will 
not  be  "granted  against  a  judgment  at  law,  on  the  ground 
of  its  being  contrary  to  equity,  unless  defendant  was  igno- 
rant of  the  fact  in  question  pending  the  suit,  or  it  could  not 
have  been  received  as  a  defense,  or  unless  he  was  prevented 
from  availing  himself  of  it  hj  fraud  or  accident,  or  the  act 
of  the  opposite  party,  unmixed  with  negligence  or  fraud  on 
his  part. "  * 

§486.  General  Grounds  of  Relief. —  TVliile  the  courts 
of  equity  in  England,  and  in  the  several  States  of  this 
Union,  have  uniformly  refused  their  aid  in  all  cases  where 
their  action  would  involve  either  the  usurpation  of  aj)pellate 
jurisdiction,  or  the  granting  of  a  second  opportunity  of  pre- 
senting a  cause  upon  its  merits,  they  have,  on  the  other 
hand,  uniformly  extended  their  beneficent  principles  and 
their  varied  and  efiicient  means  of  relief  over  a  large  and 
well  defined  class  of  cases,  to  the  end  that  no  man  should 
retain  an  unconscientious  advantage  procured  by  him,  in  a 
court  of  law  or  of  equity,  through  his  own  fraud,  or  through 
some  excusable  mistake  or  unavoidable  accident  on  the 
part  of  his  adversary.  The  jurisdiction  of  courts  of  equity 
"to  set  aside  a  decree  obtained  by  fraud,   in  an  original 


i  Watts  V.  Gayle,  20  Ala.  817;  Little 
V.  Price,  1  M'd.  Oh.  182;  Emerson  v. 
Udall,  13  Yt.  i77;  Pettes  v.  Bank  of 
Whitehall,  17  Vt.  435;  Windwart  v. 
Allen,  13  M'd.  196;  Lafon  );.  Deses- 
sart,  1  Mart.,  N.  S.  71;  Benton  v. 
Roberts,  3  Eob.  La.  22-1;  Ponder  ^;. 
Cox,  26  Geo.  iSo;  Miller  v.  Morse, 
23  Mich.  365;  Lester  r.  Hoskins,  26 
Aik.  63. 


3  York  u.  Clopton,  32  Geo.  362. 

3  Cunningham  v.  Caldwell,  Hardin,. 
123. 

4 Kinney  v.  Ogden's  Adm'r,2  Green. 
Ch.  168;  see  also  Taggart  v.  Wood, 
20  Iowa,  236;  Baxter  v.  Dear,  24  Tex. 
17;  Williams  v.  Lee,  3  Atk.  291;  Vilas 
V.  Jones,  IN.  Y.  274;  Lester  v,  Hos- 
kins, 26  Ark.  63. 

493 


§§486-487  LAW  OF  judgments.  [Cliai^.  XXII. 


"  1 


bill  filed  for  that  purpose  has  long  been  unquestioned. 
'  *  Any  evidence  which  clearly  proves  it  to  be  against  con- 
science to  execvite  a  judgment  of  which  the  injured  party 
could  not  have  availed  him  self  in  a  court  of  law,  or  of  which 
he  might  have  availed  himself  at  law,  but  was  prevented  by 
fraud  or  accident,  unmixed  with  any  fault  or  negligence  of 
himself  or  his  agent,  will  justify  an  application  to  chan- 
cery."-    To  entitle  a  party  to  relief  from  a  judgment  or  de- 
cree, it  must  be  made  evident  that  he  had  a  defense  upon 
the  merits;  and  that  such  defense  has  been  lost  to  him,  with- 
out such  loss  being  "  attributable  to  his  own  omission,  neg- 
lect or  default.''''^     The  loss  of  a  defense,  to  justify  a  court  of 
equity  in  removing  a  judgment,  must,  in  all  cases,  be  occa- 
sioned by  the  fraud  or  act  of  the  prevailing  party,  or  by 
mistake  or  accident  on  the  part  of  the  losing  party,  unmixed 
with  any  fault  of  himself  or  his  agent.* 

§  487.  Error  and  Irregularity. — It  has  already  been  in- 
timated that  neither  an  erroneous  conclusion,  upon  which  a 
judgment  was  based,  nor  any  irregularity  of  proceeding,  not 
involving  the  jurisdiction  of  the  tribunal  pronouncing  it, 
can  have  any  effect  in  determining  the  question  whether  the 
judgment  should  be  set  aside  or  restrained  in  equity.  Such, 
beyond  doubt,  is  the  law.  "A  court  of  equity  will  never 
set  aside  or  enjoin  a  judgment  on  the  ground  of  error  or 
mistake  in  the  judgment  of  the  court  of  law."  Nor  will 
this  general  rule  be  varied  because  the  judgment  was  upon 
default,  unless  there  was  fraud  or  surprise  or  other  good 
reason  for  the  failure  to  defend;'^  nor  on  the  ground  that 
the  Supreme  Court  had  overlooked  or  mistaken  material 


1  Wright  V.  Miller,  1  Sanf.  Cb.  103; 
■Whittemore  v.  Coster,  3  Green's  Ch. 
438. 

2 Marine  Ins.  Co.  v.  Hodgson,  7 
Cranch,  332;  Ex'rs  Powers  u.Admr's, 
Butler,  SGreenCh.  465. 

3  Hair  u.  Lowe,  19  Ala.  224. 

*  Wingate  v.  Haywood,  40  N.  H. 
437 ;  Hibbard  v.  Eastman,  47  N.  H. 
507 ;  Mastic  v.  Thorp,  29  Cal.  444  ; 
Boston  V.  Haynes,  33  Cal.  31. 

5  Story's  Eq.,  Sec.  1572  ;  Paddock 
V.  Palmer,  10  Vt.  581  ;  Baker  v.  Mor- 

494 


gan,  2  Dow's  Eep.  526  ;  Shottenkirk 
V.  Wheeler,  3  Johns.  Ch.  279;  Holmes 
V.  Remsen,  7  Johns.  Ch.  298  ;  Coffin 
V.  McCuUough's  Admr.,  30  Ala.  107; 
Ludlow  V.  Eamsay,  11' Wall.  581;  Tar- 
ver  V.  Tarver,  9  Pet.  174;  McDonall  v. 
McDonall,  1  Bai.  Eq.  324;  De  Riemer 
V.  De   Cautillon,   4  Johns.   Ch.  85 
Stockton  V.  Briggs,  5  Jones'  Eq.  309 
Reynolds  v.  Horine,  13  B.  Mour,  234 
Dunn  V.  Fish,  8  Blackf.  407. 

i  Turpin  v,  Thomas,  2  H.  &  M.  139 


Chap.  XXII.]        ERIIOR  AND  IRREGULAEITY.  §487 

facts  shown  by  the  record/  nor  because  the  court  "through 
haste  and  inadvertence,"  rendered  an  erroneous  decision.^ 
If  a  judgment,  in  an  action  to  foreclose  a  lien,  is  entered 
against  the  defendant  iDorsonally  as  well  as  against  the  prop- 
erty, when  no  personal  judgment  is  prayed  for  in  the  com- 
plaint, such  personal  judgment,  though  erroneous,  is  not 
void.  But  the  entry  of  such  judgment,  in  the  absence  of 
any  special  agreement  or  understanding  between  the  par- 
ties, is  not  fraud,  and  is  not  to  be  set  aside  in  equity.'^  Ee- 
lief  cannot  be  granted  because  the  court  erred  in  admitting 
or  in  excluding  evidence.  There  must  always  be  some  spe- 
cial ground  of  relief  other  than  error  of  law.*  All  errors  of 
decision  and  of  proceeding  must  be  settled  in  the  tribunals 
in  which  they  originate,  or  by  an  appeal  to  some  appellate 
tribunal ;  and  in  no  case  will  the  court  of  equity  take  upon 
itself  a  revisory  jurisdiction.'^  Hence,  where  bonds  were 
taken,  under  a  certain  act  of  the  legislature  to  regulate  the 
sale  of  spirituous  liquors,  and  a  judgment  was  rendered 
upon  one  of  sucli  bonds,  and  thereafter,  in  another  action, 
the  act  Avas  declared  unconstitutional,  it  was  held  that  an 
injunction  should  not  be  granted  to  restrain  the  execution  of 
the  judgment.  The  judgment  "was  founded  on  the  bonds, 
and  not  on  the  act;  and  of  the  suit  upon  them,  the  Circuit 
Court  had  full  jurisdiction.  The  act  being  void,  the  bonds 
are  simply  unsupported  by  any  valid  consideration;  and  this 
being  the  case,  the  judgment  rendered  upon  these  bonds, 
though  it  may  be  deemed  erroneous,  is  not  void,  and  must 
be  held  operative  until,  in  accordance  with  the  ordinary 
rules  of  procedure,  it  is  reversed  by  a  court  of  error."''  As 
a  final  judgment  or  decree  cannot  be  avoided  in  equity  on 
account  of  any  errors  of  law  entering  into  it  and  affecting 
the  merits  of  the  contrftversy,  it  could  hardly  be  contended 
that  mere  errors  in  proceeding  could  have  a  greater  efiect. 
It  is  therefore  conceded  that  equity  will  not  interfere  with 


1  KiTSsel  V.  Skton,  38  Geo.  195 . 
Nicholson  v.  Pattersou,  G  Humph. 
394. 

2  Dunham  ?\  Downer,  31  Verm.  249. 

3  Murdork  v.  DeVries,  37  Cal.  527. 
*  Vaughn  v.  Johnson,  1  Stock.  173; 


Harrison  v.  Nettleship,  2  Mylne  & 
Keeue,  423  ;  Moore  v.  Dial,  3  Stew. 
155. 

5  Jennison  v.  Hapgood,  7  Pick.  1. 

6  Cassell  V.  Scott,  17  Ind.  514. 

495 


§ ^487-489  LAW  OF  judgments.  [Chap.  XXII. 

a  judgment  on  account  of  alleged  irregularities  occurring  in 
the  exercise  of  lawful  jurisdiction.^ 

§  488.  Classification. — The  exclusion  of  error  and  irregu- 
larity from  the  grounds  upon  which  relief  from  a  judgment 
or  decree  may  be  obtained,  leaves  but  one  ground  available 
in  any  case,  Avhich  is  that  the  party  could  not  successfully 
prosecute  his  claim  nor  make  his  defense  in  the  original 
action,  because  it  was  not  there  available  to  him  as  a  claim 
or  defense,  or,  if  so  available,  he  was,  without  any  fault  on  his 
part,  prevented  from  asserting  it.     The  causes,  by  reason  of 
■which  the  party  could  not  successfully  prosecute  or  defend, 
and  by  which  he  is  entitled  to  the  aid  of  courts  of  chancery 
to  relieve  him  from  the  consequences  which  would  otherwise 
attend  a  final  adjudication  pronounced  against  him,  naturally 
divide  themselves  into  two  great  classes.   The  class  which  we 
shall  first  consider  includes  all  those  cases  in  which  a  defense 
or  prosecution  could  not  be  made  on  account  of  the  fraud  or 
act  of  the  prevailing  party.     In  the  second  class,  are  em- 
braced all  those  cases  in  which  a  party  is  excused  from  pre- 
senting his  side  of  the  controversy,  although  his  failure  to 
present  it  did  not  arise  from  the  act  or  fault  of  his  adversary. 

§  489.  Fraud. — Chief  among  the  cases  belonging  to  the 
first  named  class,  are  those  in  which  the  judgment  or  de- 
cree was  obtained  by  fraud.  It  is  a  general  rule,  too  famil- 
iar to  require  any  citation  of  authorities  in  its  support,  that 
"A  judgment,  either  of  a  legal  or  of  an  equitable  tribunal, 
may  be  in  effect  vacated  by  a  court  of  equity,  if  it  was  ob- 
tained by  fraud. "^    but  a  few  cases  will  be  noticed  as  illus- 

iBlanck  v.  Speckman,  23  La.  Au.  1  ards,  3  Md.  Ch.  592;  Hahn  v.  Hart, 


146;  Mclnloe  v.  Hazleton,  19  "Wis. 
567  ;  Stiles  v.  Kuapp,  2  Ga.  Decis. 
36;  Boyd  v.  Chesapeake,  17  Md.  195; 
Gardner  v.  Jenkins,  14  Md.  58. 

2Munn  V.  Worrall,  16  Barb.  221; 
Corwitlie  v.  Griffin,  21  Barb.  9; 
Burcb  V.  Scott,  1  Bland.  Ch.  112; 
Brown  v.  Thornton,  47  Geo.  474; 
Ogden  V.  Larrabee,  57  111.  389;  Cow- 
in  V.  Toole,  31  Iowa,  513;'  Hayden  v. 
Hayden,  46  Cal.  — ;  Carrington  v. 
Holabird,  17  Conn.  530;  Greene  i\ 
Haskell,  5  E,  I.  447 j  Kent  v.  Kic- 
406 


12  B.  Monr.  426;  Crank  v.  Flowers, 
Heisk.  629.  "It  is  the  just  and 
proper  iiride  of  our  matured  system 
of  equity  jurisprudence  that  fraud  vi- 
tiates eyery  transaction;  and,  however 
men  may  surround  it  with  forms, 
solemn  instruments,  proceedings  con- 
forming to  all  the  details  required  in 
the  laws,  or  even  by  the  formal  judg- 
ment of  court,  a  court  of  equity  will 
disregard  them  all  if  necessary,  that 
justice  and  equity  may  prevail." 
Warner  v.  Blakcmau.  4  Koyes,  507. 


Chap.  XXII.]  PEAUD.  §489 

trating  tho  application  of  this  rule.  If  a  confession  of 
judgment  be  made  by  virtue  of  a  letter  of  attorney,  fraudu- 
lently obtained,  both  the  judgment  and  the  letter  of  attorney 
will  be  annulled/  Suit  was  commenced  against  several 
defendants.  The  summons  being  returned  as  to  one  de- 
fendant, "Executed  by  leaving  a  copy,"  tho  plaintiff's 
attorney  erased  all  the  return,  except  the  word  "executed," 
and.  thereby  obtained  a  judgment.  Writ  of  error  was  sued 
out,  but  the  judgment  Avas  affirmed  by  the  appellate  court. 
Afterwards  the  original  judgment  was  set  aside  at  chancery 
on  the  ground  of  fraud,  not  apparent  on  the  face  of  the 
record,  in  relation  to  the  service  of  process,  and  which 
could  not  therefore  be  asserted  against  the  judgment  on 
appeal.-  A  judgment  was  obtained  by  attachment,  during 
defendant's  absence,  for  a  sum  claimed  to  be  due  for  the 
board  of  his  wife.  Eelief  was  obtained  by  the  defendant, 
upon  showing  that  it  was  the  duty  of  plaintiff  under  an 
agreement  to  furnish  such  board,  and  that  he,  at  the  time  ■ 
the  suit  was  commenced,  had  funds  of  defendant  in  his 
hands,  on  the  ground  that  otherwise  a  party  having  no 
opportunity  for  defense,  would  be  subjected  to  a  gross 
wrong  and  fraud. '^  A  plaintiff  filed  a  complaint  against  his 
wife  praying  for  a  divorce  on  the  ground  of  desertion.  lie 
obtained  an  order  for  the  service  of  summons  by  publica- 
tion, by  alleging  that  he  did  not  know  the  place  of  her  resi- 
dence. Judgment  by  default  was  afterwards  entered,  based 
upon  such  service.  The  wife  instituted  proceedings  to  set 
aside  the  decree,  alleging  that  the  separation  was  voluntary, 
and  in  pursuance  of  written  articles;  that  the  plaintiff'  well 
knew  where  she  resided;  that  no  copy  of  summons  or  com- 
plaint was  ever  served  on  her  personally,  nor  by  depositing 
a  copy  thereof  in  the  post-office  directed  to  her,  and  that 
she  had  no  knowledge  of  the  suit  until  long  after  the  decree 
Avas  entered.  A  demurrer  being  interposed,  the  court  held 
that  the  allegations  of  the  wife  showed  such  a  fraud  upon  her, 
and  upon  the  court  in  the  divorce  case,  for  the  purpose  of 
avoiding  a  contest  upon  the  merits,  as  authorized  the  set- 
ting aside  of  the  decree.'     A  decree 'against  an  adminis- 


1  Johnston  v.  Looi^,  2  Tex.  331. 
^  Wilson  V.  Montgomery,  li  S.  i 
M.  205. 

(32)  497 


•■t  Moore  i-.  Gamble,  1  Stock.  2iC. 
1  Johnson  v.  Coleman,  27  Wis.  452. 


gg4S9-491  LAW   OF   JUDGMENTS.  [Cili^P-  XXII. 

trator,  foiindecl  upon  a  bond,  will  be  set  aside  for  fraud,  if 
it  appear  that  tlie  court  was  deceived  by  plaintiffs  tearing 
off  from  the  bond  a  paper  annexed  thereto,  showing  credits 
which  ought  to  have  been  applied  to  the  bond,  as  the  ad- 
ministrator is  not  presumed  to  be  cognizant  of  the  transac- 
tions of  his  testator.  '  Equity  will  not  relieve  a  party  from 
a  judgment  procured  by  his  own  fraud.  ^  If  the  defendant 
in  an  action  has  been  discharged  by  a  decree  in  bankruptcy, 
and  is  prevented  from  availing  himself  of  this  discharge  by 
any  trick,  fraud  or  device  of  the  plaintiff,  equity  will  grant 
him  relief.  ^  Collusion,  being  one  of  the  forms  in  which 
fraudulent  designs  are  frequently  pursued,  is  as  objection- 
able as  any  other  form  of  fraud,  and  vitiates  all  judgments 
into  which  it  enters,  and  the  person  against  whom  it  is  em- 
ployed may  find  relief  in  equity.  *  The  fraud  for  which  a 
judgment  may  be  vacated  or  enjoined  in  equity  must  be  in 
the  procurement  of  the  judgment.  If  the  cause  of  action 
be  vitiated  by  fraud  this  is  a  defense  which  must  be  inter- 
posed, and  unless  its  interposition  be  prevented  by  fraud, 
it  cannot  be  asserted  against  the  judgment.^ 

§  490.  Fraudulent  Alteration. — If  a  judgment  properly 
obtained,  is  afterwards  fraudulently  altered,  so  as  to  in- 
clude a  person  not  served  with  process,  and  not  originally 
named  in  the  judgment,  equity  has  jurisdiction  to  vacate  it.'' 
"Fraud  is  one  of  the  heads  of  original  and  undoubted 
equity  jurisdiction;  and  to  alter  and  change  the  record  of  a 
judgment,  by  increasing  the  sum  for  which  it  was  rendered, 
without  authority  or  consent,  is  a  gross  aud  palpable  fraud, 
although  it  may  also  be  a  crime."  An  injunction  will, 
therefore,  be  issued  to  restrain  the  collection  of  a  judgment 
so  altered.'' 

§  491.     Fraudulent  Concealment. — The  concealment  of 


1  Carneal  v.  Wilson,  3  Litt.  80. 

-  Blystone  v.  Blystonc,  51  Pa.  S. 
373. 

» Starr  v.  Heckart,  32  ^I'a.  267; 
Greenlcaf  v.  Maher,  2  Wash.  C.  C. 
44;  Manwarring  v.  Kouus,  35  Tex. 
171;  Park  v.  Casey,  35  Tex.  536. 

498 


*  Hardy  v.  Broaddns,  35  Tex.  668; 
Mayberry  r.  McClurg,  51  Mo.  256. 

s  Muscatine  v.  Miss.  R.  B.  Co.,  1 
Dill.  C.  C.  536. 

e  Chester  v.  Miller,  13  Cal.  558. 

'  Babcock  v.  McCamant,  53  III.  214, 


Cliap.   XXII. ]       FRAUDULENT  CONCEALMENT.  g491 

facts  wliicli,  if  known  at  the  trial,  would  have  prevented  the 
recovery,  is  always  good  ground  for  coming  into  equity  to 
obtain  relief  from  a  judgment  at  law.'  Thus,  if  an  admin- 
istrator suppresses  the  receipt  of  a  sum  of  money  obtained 
by  him  for  the  benefit  of  the  estate,  and  thereby  causes  his 
accounts  to  be  closed  without  his  being  charged  with  that 
sum,  they  will  be  reopened  at  equity  on  the  ground  of  fraud, 
although  the  statute  declares  the  decree  of  accounting  final 
and  conclusive.^  A  judgment  recovered  by  a  vendor  for 
an  amount  due  as  purchase  money  of  lands,  will  be  enjoined 
in  equity  if  it  can  be  shov;n  that,  after  the  recovery,  the  de- 
fendant discovered  that  the  vendor  had  conveyed  the  land 
to  his  children  previously  to  conveying  to  the  defendant, 
the  defendant's  deed  containing  covenants  of  warranty,  and 
the  plaintiff's  estate  being  insolvent.  A  bill  was  filed  to 
set  aside  a  judgment  recovered  upon  a  policy  of  insurance, 
in  which  it  was  charged  that  the  ship  insured  was  lost  by  the 
boring  of  holes  in  her  bottom,  and  by  fraudulently  casting 
her  away;  that  such  fraud  was  unknown  when  the  judgment 
was  rendered,  and  was  fraudulently  concealed  by  the  plaint- 
iffs in  the  former  suit.  Upon  demurrer,  it  was  decided  that 
these  charges,  if  sustained,  would  entitle  complainant  to 
the  relief  demanded,  because  a  perfect  and  valid  defense  at 
law  has  been  made  unavailable  by  the  fraudulent  concealment 
of  the  plaintiffs  and  the  total  and  excusable  ignorance  of  the 
defendants.^  H.  sued  E.  ;  S.,  who  was  liable  with  R.,  was 
put  on  the  stand  as  a  witness ;  but  just  before  becoming 
such  witness!  he,  without  the  knowledge  of  R.,  paid  H.  the 
amount  claimed.  Judgment  was  rendered  against  R.  be- 
fore he  knew  of  the  payment  made  by  S.  H.  afterward 
endeavoring  to  collect  his  judgment,  R.  set  up  these  facts, 
and  prayed  for  an  injunction.  To  oppose  the  issuing  of 
the  injunction,  H.  insisted  that  the  fact  of  payment  ought 
to  have  been  disclosed  as  a  defense  prior  to  the  judgment. 
But  the  court  held  that  "R.  was  not  bound  to  present  to  a 
court  of  law  a  fact  of  which  he  knew  nothing,  and  of  which 


J  Fish  V.  Lane,  2  Hay-wood,   342 
Noyes  v.  Loeb,  24  La.  An.  48. 
^  Pratt  V.  Northam,  5  Mason,  95. 


^  Ocean  Ins.  Co.  v.  Fields,  2  Stoiy 
0.  C.  59. 

499 


§§491-492  LAW  OF  JUDGMENTS.  [Chap.   XXII. 

he  had  no  cause  to  suspect  anything,  and  to  -which  he  was 
in  no  manner  privy.''"' 

g  492.     Taking  Judgment  Against  Agreement. — It  has 

frcqiiently  happened  that  one  of  the  parties  litigant,  has 
failed  to  present  his  claim  or  defense  because  he  has  relied 
npon  some  agreement  or  understanding  between  himself  and 
his  adversary,  which,  if  observed,  rendered  such  presenta- 
tion unnecessary.  And  with  more  than  occasional  frequency, 
if  we  may  judge  from  the  reports,  these  agreements  have 
been  designed  to  lull  a  party  into  securit}'  and  inactivity  in 
order  that  some  unconscientious  advantage  could  be  taken 
of  him.     In  all  such  cases,  courts  of  equity,  when  asked  to 
do   so,  have  invariably  restored  the  injured  party  to  his 
rights  under  the  agreement,  and  have  wrested  from  his  op- 
ponent all  those  fruits  he  had  hoped  to  harvest  and  enjoy 
through  fraud  and  duplicit3\''     An  action  was  commenced 
against  A.   and   others.     A.,   having   a  good  defense,    the 
plaintiff  agreed  to  dismiss  as  to  him,  and  on  that  account 
A.  failed  to  defend.     The  judgment  taken  in  violation  of 
this  agreement,  was  set  aside  and  the  execution  restrained.'' 
Similar  action  was  taken  where  the  defendant  was  assured 
that  he  was  sued  jjro  foi'ma  because  he  was  supposed  to  be 
a  necessary  party,  and  that  no  judgment  would  be  taken 
against  him;  and  a  decree  was  nevertheless  taken  against 
defendant,*  and  so,  when  after  the  commencement  of  a  suit 
an  accord  and  satisfaction  had  taken  place  between  the  par- 
ties, and  upon  that  account,  the  defendant  failed  to  appear 
and  plead,  and  he  was  relieved  from  the  judgment.  ■'"'     The 
principle  that  taking  judgment  in  opi)osition  to  an  agree- 
ment or  representation  of  a  party  or  his  attorney,  is  such  a 
fraud  that  the  parties  will  be  restored  to  their  former  posi- 
tion, is  equall}'  applicable  if  there  be  but  one  defendant,  or 
if  the  defendant  on  account  of  the  agreement  fails  to  answer, 


1  Reed  v.  Harvey,  23  Ark.  44. 

2  Holland  v.  Trotter,  22  Gratt.  13C 
Chambers  v.  Eobbius,  28  Conn.  552 
Kent    V.    PJcards,    3  Md.   Ch.    392 
Neuman  v*  Meek,    Sm.    &   M.    Ch. 
331. 

500 


^  Johnson  v.  Unversaw,  30  Ind.  435; 
Stone  V.  Lewman,  28  Ind.  07. 

■'  Broaddus  u.  Broaddus,  3  Dana, 
536. 

5  Jarmiu  v.  Saunders,  G4  N.  C.  3G7. 


Chap.  XXII.]      JUDGMENT  AGAINST  AGEEEMENT.  §492 

or  after  answering  fails  to  attend  the  trial,'  or  if  the  person 
against  whom  the  recovery  has  been  had  was  a  garnishee, 
who,  being  summoned,  had  answered  showing  that  he  had 
no  funds  of  the  defendant  in  his  hands,  and  had  thereupon 
been  assured  that  no  further  proceedings  would  be  taken 
against  him.^  Where  A.  was  sued  upon  a  note  and  mort- 
gage and  the  plaintiff  for  a  valuable  consideration  released 
him  from  personal  liability;  but  took  judgment  in  violation 
of  his  contract,  and  issued  execution  thereon,  such  execu- 
tion was  restrained  on  the  ground  that  "it  was  against 
conscience  for  the  mortgagee  to  retain  his  advantage."^  It 
makes  no  difference  that  the  agreement  is  void  because 
made  on  Sunday,  or  was  oral  when  the  rules  of  the  court 
required  all  stipulations  to  be  in  writing.  If  it  can  be 
shown  that  it  was  successfully  employed  to  prevent  the  de- 
fendant from  making  his  defense,  then  the  plaintiff  will  not 
be  allowed  to  retain  the  advantage  it  has  secured  him.^  A 
judgment  will  be  annulled  for  fraud  if  it  was  procured  by 
prevailing  on  a  justice  of  the  peace  to  take  up  a  case  in  the 
absence  of  a  defendant  to  whom  the  justice  had  announced 
in  the  morning  that  he  was  sick  and  could  not  try  the  cause, 
and  who  would  have  been  present  at  the  hour  of  trial  but 
for  such  announcement,  the  plaintiff  being  present  when  the 
defendant  left  the  court,  and  afterwards  returning  and  in- 
ducing the  justice  to  proceed  with  the  case.'^  In  this 
instance,  while  the  prevading  party  had  not  personally 
made  those  statements  which  induced  the  defendant  to 
forego  presenting  his  defense  at  the  appointed  time,  he  had 
adopted  statements  made  by  another  and  employed  them 
for  an  unconscionable  purpose,  and  had  thus  brought  him- 
self fairly  Avithin  the  rule  that  no  one  shall  retain  an  advan- 
tage at  law  secured  by  his  own  fraud  and  misrepresentation. 
But  relief  was  granted  in  an  early  case  in  Virginia,  which 
seems   altogether   unjustifiable,    because   it   sanctions   the 


1  Dobson  V.  Pearce,  1  Abb.  Vr.  97; 
Eogers  v.  Gwinu,  21  Iowa,  58;  Dob- 
son  u.  Pearce,  12  N.  Y.  165;  Pearce  v. 
Olney,  20  Conn.  544;  Wierich  v.  De- 
Zoya,  2  Gilm.  385;  Edmonson  v. 
Moseby's  Heirs,  4  A.  K.  M.  497. 


2  Pelham  v.  Moreland,  6  Eng.  442. 

^Hibbard  v.  Eastman,   47  N.   H. 
5U7. 

4  Blakesley    v.    Johnson,   13  Wis. 
530. 

'^  Miles  V.  Jones,  28  Mo.  87. 
501 


g §492-493  LAW  OF  judgments.  [Chap.  XXIT. 

« 

restraining  of  a  judgment  on  account  of  a  misrepresentation 
to  which  the  phiiutilf  was  neither  directly  nor  indirectly  a 
party.  Three  persons  were  sued  as  co-partners.  One  of 
them,  who  in  fact  was  not  a  partner  with  the  others,  neg- 
lected to  defend  because  ho  was  assured  by  his  co-defend- 
ants that  the  matter  would  be  adjusted.  An  injunction  was 
granted  and  the  parties  j)laced  in  their  original  position.' 

§  493.  Procured  by  Concealment.  —  The  concealment 
of  material  facts  is  looked  upon  with  such  abhorence,  if 
employed  to  obtain  an  unjust  judgment,  that  relief  has  been 
granted  from  judgments  so  obtained,  when  any  consider- 
able degree  of  diligence  would  have  revealed  to  the  losing 
party  and  have  enabled  him  to  present  to  the  court,  the 
evidence  for  want  of  which  he  was  defeated  at  the  trial. 
Thus  a  plaintiff,  knowing  a  judgment  to  be  satisfied,  brought 
an  action  as  a  judgment  creditor  for  the  purpose  of  setting 
aside  a  conveyance  as  being  made  in  fraud  of  his  rights. 
After  he  had  obtained  his  decree,  the  defendants  discovered 
that,  while  no  satisfaction  was  marked  upon  the  docket,  yet 
one  was  filed  among  the  papers  in  the  case,  anterior  to  the 
commencement  of  the  suit  against  them.  They  then  insti- 
tuted proceedings  to  set  aside  the  decree  annulling  their 
conveyance,  and  obtained  the  relief  sought,  on  the  ground 
that  by  examining  the  docket  where  the  entry  of  satisfadion 
ought  to  he  made,  they  had  used  sufficient  diligence  to  entitle 
them  to  protection  from  one  asserting  a  claim  known  to  him 
to  be  fully  paid.^  But  as  a  general  rule  no  party  can  be  re- 
lieved on  the  ground  of  any  fraudulent  practice  or  conceal- 
ment on  the  part  of  his  adversary,  unless  he,  on  his  part, 
exhausted  all  proper  diligence  to  defend  the  original  action. 
This  is  particularly  the  case  where  some  fraudulent  device 
is  employed  by  the  other  side  in  the  management  of  his  case, 
or  in  adducing  the  testimony  of  perjured  witnesses.  Upon 
discovering  any  such  fraud  the  party  against  whom  it  is 
employed  must  at  once  use  all  the  means  in  his  power  to 
countervail  it.  He  cannot  either  neglect  or  refuse  to  employ 
the  means  in  his  power  to  obtain  a  proper  determination  of 
the  action  in  opposition  to  the  fraud  practiced  upon  him; 

1  Lee  u.  Baird,  4  Hen.  &  M.  453.      \      2  Sliiukle  u.  Letcher,  47  111.  21G. 

502 


Chap.  XXII.]  WANT  OF  NOTICE.  §§tI:93-495 

aud  then,  if  tbrougli  Lis  supineness,  tlio  frauclulcnt  device 
proves  successful,  resort  to  a  court  of  equity  aud  obtain 
relief.^ 

g  494.  Personal  Threats. — The  allegation  iu  a  com- 
plaint to  obtain  relief  from  a  judgment  or  decree,  stating 
that  the  defendant  did  not  make  his  defense  because  pre- 
vented bj  threats  of  personal  violence  from  attending  at 
the  trial,  is  wanting  in  the  averments  essential  to  authorize 
the  intervention  of  a  court  of  equity.  It  fails  to  show 
that  the  plaintiff  was,  iu  any  manner,  responsible  for  those 
threats,  or  that  the  case  could  not  be  efficiently  managed 
by  an  agent  or  attorney,  in  the  absence  of  the  defendant.'' 

§  495.  Want  of  Notice.  —  "We  shall  now  consider  the 
circumstances  in  which  a  defendant  may  be  relieved  from  a 
judgment  or  decree  rendered  in  an  action  wherein  his  fail- 
ure to  defend  is  not  chargeable  to  the  plaintiff.  Prominent 
among  the  grounds  of  relief  belonging  within  this  class  of 
cases,  is  the  one  that  the  court  has  proceeded  to  condemn  a 
party  without  first  giving  him  an  opportunity  to  be  heard. 
A  judgment  pronounced  without  service  of  process,  actual 
or  constructive,  and  without  the  defendant's  knowing  that  a 
court  has  been  asked  to  adjudicate  upon  his  rights,  is  re- 
garded with  such  disfavor  at  law  that  a  variety  of  motions, 
writs,  and  proceedings,  are  there  provided  to  overthrow  it ; 
and,  in  many  courts,  it  is  at  all  times  and  upon  all  occasions 
liable  to  be  entirely  disregarded  upon  having  its  jurisdic- 
tional infirmity  exposed.  But  proceedings  in  equity  aro 
peculiarly  appropriate  for  the  exposure  of  this  infirmity. 
They  permit  of  the  formation  of  issues  upon  the  question 
of  service  of  process ;  and  of  the  trial  of  those  issues,  after 
full  opportunity  has  been  given  to  those  who  seek  to  sus- 
tain, as  well  as  to  those  who  seek  to  avoid,  the  judgment. 
If,  at  such  trial,  it  satisfactorily  appears  that  the  defendant 
was  not  summoned,  and  had  no  notice  of  the  suit,  a  suffi- 
cient excuse  is  shown  for  his  neglect  to  defend,  and  equity 
will  not  allow  the  judgment,  if  unjust,  to  be  used  against 


»  Riddle  v.  Baker,  13  Oal.  295.      |      2 Powell  v.  Cyfers,  1  Hciskell,  526. 

503 


§495  LAW  OF  JUDGMENTS.  [Cliap.    XXII. 

him.'  Thus  an  order  of  sale  of  land  granted  upon  the  peti- 
tion of  an  administrator,  without  service  of  process  upon 
infant  heirs  who  have  no  general  guardian,  will  be  set  aside 
upon  making  application  in  equity.'  If  the  record  does  not 
disclose  the  jurisdictional  defect,  an  affirmance  of  the  judg- 
ment in  an  appellate  court  does  not  divest  equity  of  the  au- 
thority to  grant  relief.  "The  affirmance  of  a  void  judg- 
ment, on  grounds  not  touching  but  overlooking  its  invalid- 
ity, does  not  make  it  valid.  "^ 

There  seems  to  be  but  little  dissent  from  the  proposition 
that  the  want  of  service  of  process  may  be  shown  in  equity 
in  opposition  to  the  statement  in  the  judgment  roll.^  Still, 
the  position  has  been  taken  by  the  highest  court  in  the 
United  States,  that  this  proposition  must  be  confined  to 
those  cases  in  which  the  false  return,  if  the  jurisdictional 
declaration  is  found  in  the  return  of  an  officer,  is  in  some 
way  connected  with  the  act  or  procurement  of  the  plaintiff. 
Thus,  in  an  action  to  enjoin  a  judgment,  wherein  it  was 
proved  that  no  process  was  served  and  that  the  return  was 
false,  the  court  said:  "The  respondents  did  no  act  that  can 
connect  them  with  the  false  return.  It  was  the  sole  act  of 
the  marshal,  through  his  deputy,  for  which  he  was  respon- 
sible to  the  complainant  for  any  damages  that  were  sus- 
tained by  him  in  consequence  of  the  false  return.  This  is 
free  from  controversy;  still,  the  marshal's  responsibility 
does  not  settle  the  question  made  by  the  bill,  which  is,  in 
general  terms,  whether  a  court  of  equity  has  jurisdiction  to 
regulate  proceedings,  and  to  afford  relief  at  law,  where  there 
has  been  an  abuse  in  the  various  details  arising  out  of  exe- 
cution of  process,  original,  mesne  and  final.  If  a  court  of 
chancery  can  be  called  on  to  correct  one  abuse,  so  it  may  be 
to  correct  another;  and  in  effect,  to  vacate  judgments, 
where  the  tribunal  rendering  the  same  would  refuse  relief, 
either  on  motion,  or  on  a  proceeding  by  audita  querela, 
where   this   mode  of   redress  is  in  use.     In  cases  of  false 


1  Ingle  11.  McCurry,   1  Heisk.  26  ; 
Stubbs  V.  Leavitt,  30  Ala.   352. 

■'  Tyler  v.  Walker,  1  Heiskell,  734. 

3  Wilson  V.  Montgomery,   14;  S.  & 
M.  205. 

504 


4  Bridgeport  Sav.  Bank  v.  Eldredge, 
28  Conn.  55G;  Newcomb  v.  Dewey,  27 
Iowa,  381  ;  Bell  v.  Williams,  1  Head. 
229;  Stone  v.  Skerry,  31  Iowa,  582. 


Chap.  XXII.]  PRIVILEGED   PERSONS.  g §495—190 

returns  affecting  a  defendant,  -vvliere  tlie  plaintiff  at  law  is 
not  in  fault,  redress  can  only  be  had  in  the  court  of  law 
where  the  record  was  made,  and  if  relief  cannot  be  had 
there,  the  party  injured  must  seek  his  remedy  against  the 
marshal."'  But  the  obvious  and  conclusive  answer  to  this 
line  of  argument  is  thus  briefly  stated  in  the  opinion  of  the 
Supreme  Court  of  Tennessee:  "The  action  for  a  false 
return  is  an  inadequate  remedy  for  such  an  injury;  for  it 
might  be  that  after  a  ruinous  sacrifice  suifered  in  the  pay- 
ment of  a  judgment  so  recovered,  and  the  delaj^and  expense 
of  litigation  with  the  officer  who  made  the  false  return,  he 
might  be  unable  to  make  the  proper  indemnitj-,  or  succeed 
in  evading  his  liability.""  Besides  the  improbability  of  the 
party  who  is  compelled  to  pay  a  judgment  being  able  to 
secure  indemnity  from  an  officer  making  a  false  return,  not 
only  for  the  amount  paid  but  for  the  loss  occasioned  by 
having  to  sacrifice  his  estates  in  order  to  make  an  immediate 
and  compulsory  payment,  and  the  consequent  inadeqaucy  of 
any  remedy  at  law,  where  the  judgment  is  for  a  sum  of 
money,  there  are  a  number  of  cases  involving  the  possession 
of,  or  title  to,  real  or  personal  property,  in  which,  conced- 
ing the  liability  of  the  officer  making  the  false  return,  no 
adequate  remedy  can  exist,  except  that  of  restoring  the  par- 
ties to  their  position  before  judgment  and  permitting  a  de- 
fense upon  the  merits. 

§  496,  Judgments  against  Privileged  Persons. — But,  if 
process  be  served,  the  defendant  must  appear  and  protect 
his  interests.  If  he  is  privileged  from  service  as  a  member 
of  a  legislative  or  other  political  body,  the  privilege  is  a 
personal  one,  which  must  be  claimed  by  motion  in  the  case. 
Courts  cannot,  ex  officio,  take  notice  of  the  persons  thus 
privileged.  And  if,  in  the  absence  of  any  claim  being  in- 
terposed, judgment  is  pronounced  against  them,  it  Avill  not 
be  intermeddled  with  in  equity.^ 


1  Walker  v.  Eobbins,  U  How.  U.S. 
5S4;  to  the  same  effect,  Johnson  v. 
Jones,  2  Neb.  133. 

sEidgeway  v.  Bank  of  Tenn.,  11 
Hump.  523. 


3  Peters  u.  League,  13- Md.  58;  Pren- 
tcs   V.   Commonwealth,   5   Kand.    p. 

697. 


505 


§§497—198  LAW  OF  JUDGMENTS.  [Chap.  XXII. 

§  497.  While  thero  is  Remedy  at  La-w. — The  authori- 
ties do  not  agree  upou  the  question  whether  equity  Avill 
interfere  with  a  judgment  on  the  ground  of  want  of  juris- 
diction over  the  defendant,  while  he  has  it  in  his  power  to 
employ  some  efficient  remedy  in  the  original  case.  In  Ken- 
tucky, "though  an  original  judgment  be  void  and  be  capa- 
ble of  being  reversed  on  appeal,  yet  the  Circuit  Court  has 
power,  in  an  action  for  that  purpose,  to  enjoin  it,  and  to 
vacate  proceedings  under  it.'"  In  Wisconsin,  the  fact 
that  the  judgment  might  be  set  aside,  upon  motion,  for 
want  of  jurisdiction,  is  no  objection  to  a  proceeding  in 
equity,  because  such  proceeding  "is,  beyond  doubt,  as  a 
remedy  equally  appropriate  both  for  an  investigation  of  the 
issues  involved,  and  the  awarding  of  appropriate  relief  as  a 
motion.""  Similar  rules  prevail  in  lowa,^  Tennessee^  and 
Louisiana,^  but,  in  California,  equity  will  not  interpose 
while  the  statute  remedy  by  motion  exists;''  and  in  some  of 
the  other  states,  courts  of  equity  have  wisely  declined  to 
interfere  where  an  adequate  remedy  existed  at  law.^ 

g  498.  Merits  must  be  Sho-wn. — It  has  been  held  that 
a  judgment  rendered  without  service  of  process,  and  with- 
out the  knowledge  of  the  defendant,  may  be  relieved  against 
without  any  showing  on  the  question  of  inerits,  for  the 
reason  that,  "in  such  a  case,  the  injury  consists  in  the  ren- 
dition of  a  judgment  against  a  party,  without  notice  and 
opportunity  of  defense ;  and  that  it  is  unjust  and  uncon- 
scientious to  attempt  to  enforce  a  judgment  so  obtained."^ 
But  the  better  established  rule,  undoubtedly,  is,  that  not- 
withstanding an  alleged  w^ant  of  service  of  process,  a  court 
of  equity  will  not  interfere  to  set  aside  a  judgment  until  it 
appears  that  the  "result  will  be  other  or  different  from  that 
already  reached."' 


iLandrum  v.  Farmer,  7  Bush.  46. 
SJohuson  V.  Coleman,  23  Wis.  452. 
sCounell  v.  Stelson,  33  Iowa,  147. 
4Carutherst).Hartsfield,  3Ycrg.  3G6 
5  Hernandez  v.  James,  23  La  .An.  484 


TCraudall  v.  Bacon,  20  Wis.  G39; 
Hart  V.  Lazarou,  46  Geo.  396. 

8 Bell  V.  Williams,  1  Head.  229. 

oTaggart  v.  Wood,  20  Iowa,  236; 
Gregory  V.Ford,  14  Cal.  138;  Fowler 


eBibeud  v.  Krevitz,  20  Cal.  109;  |  v.  Lee,  10  G.  &  J.  363;  Piggot  v.  Ad- 
Sancbez  v.  Carriaga,  31  Cal.  171;  Lo-  j  dicks,  3  G.  Greene,  427  ;  Crawford  i\ 
gan  V.  Hillegrass,  16  Cal.  201.  White,  17  Iowa,  5G0;  Stokes  l'.  Ivnarr, 

11  Wis.  389. 
506 


Cliaj).  XXII.]      UNAUTiioniZED  appearance.  ^499 

§  499.  Unauthorized  Appearance  of  Attorney.  —  The 
early  cases  undoubtedly  tolerated  the  proposition  that  a 
judgment,  based  upon  the  unauthorized  appearance  of  an 
attorney,  and  in  the  absence  of  any  service  of  process  upon 
the  defendant,  formed  an  exception  to  the  general  rule,  that 
a  judgment  which  the  party  against  whom  it  was  pronounced 
had  no  opportunity  to  prevent,  would  be  treated  as  invalid 
in  equity.  It  was  said  that  "the  mere  appearance  of  an 
attorney  for  a  party,  even  without  authority,  is  always 
deemed  sufficient  for  the  court,  which  will  look  no  further, 
but  proceed,  and  will  leave  the  party  to  his.  remedy  against 
the  attorney,"^  unless  the  attorney  was  in  irresponsible  or 
suspicious  circumstances,  or  his  appearance  was  through 
the  procurement  of  the  plaintiff.'-  In  chancery,  the  rule 
was,  in  cases  where  a  solicitor  appeared  without  authority, 
that  if  the  adverse  party  had  acquired  no  rights,  the  party 
for  whom  the  solicitor  jiresumed  to  act  might  apply  to  the 
court  and  have  the  proceedings  corrected,  and  the  solicitor 
compelled  to  pay  the  costs.  But  if  the  adverse  party  had 
acquired  any  rights,  or  had  been  subjected  to  the  payment 
of  any  costs,  the  proceedings  were  permitted  to  stand,  if 
the  solicitor  were  responsible,  and  the  injured  party  left  to 
seek  redress  against  the  solicitor.''  Now  it  seems  to  be  a 
rule  applicable  to  the  greater  part,  if  not  to  the  entire 
United  States,  that  a  judgment,  resting  upon  the  unauthor- 
ized appearance  of  an  attorney,  may  be  annulled  in  equity, -^ 
irrespective  of  the  question  whether  the  attorney  is  responsible 
or  irresponsible,  the  judgment  lien  being  preserved  to  secure 
the  plaintiff  from  loss,  should  he  afterwards  recover  at  a 
trial  on  the  merits.  ^  The  reasons  inducing  this  change  in 
the  rule,  together  with  a  general  statement  and  history  of 
the  law  upon  this  subject,  are  thus  set  forth  in  an  opinion 


1  Burrill's  Practice,  note  a  to  p.  37, 
citing  C  Johns.  34,  296 ;  1  Binney, 
214  ;  1  Pet.  C.  C.  155  ;  9  Wend.  499  ; 
2  Hill,  64. 

sHoffmire  v.  Hoffman,  3  Ed.  Ch. 
174;  7  Cow.  259;  6  Wend.  514;  9 
Wend.  437. 

^  Am.  Ins,  Oo.  v,  Oakley,  9  Pai. 
Ch.  496. 


*Piidge  V.  Alter,  14  La.  An.  8GG; 
Marvel  v.  Manouvrier,  14  La.  An.  3; 
Wiley  V.  Pratt,  23  Ind.  92S. 

=  Gifford  V.  Thorn,  1  Stock.  702, 
722;  Allen  v.  Stone,  10  Barb.  547 
Ellsworth  V.  Campbell,  31  Barb.  134 
DeLouis  v.  Meek,  2  G.  Greene,  55 
Jones  V.  Williamson,  5  Cold.  371 
Newcomb  i'.  Dewey,  27  Iowa,  381. 

507 


g499  LAW  OF  JUDGMENTS.  [Chap.  XXII. 

written   by   Chief  Justice  Dillon,  of  Iowa:  "The  ancient 
common  law  required  the  parties  to  be  present  and  prose- 
cute, or  defend,  in  person.     It  required  a  patent  or  special 
authority  from  the  crown  to  enable  parties  to  appear  by  at- 
torney.    Afterwards,  by  various  statutes,  the  right  to  appear 
by  attorney  was  recognized.     In  tlie  earlier  stages  of  the 
law  the  attorneys  were  appointed  orally  in  court.     After- 
wards they  were  allowed  to  be  appointed  by  warrant,  out  of 
court,  and  the  practice  of  the  court  was  to  require  the  war- 
rant to  be  filed,  which,  however,  might  be  done  at  any  time 
before  judgment;  and  the  want  of  it  in  the  record  was  aided 
by  statute  and  could  not  be  assigned  for  error.     This  strict- 
ness lias  been  gradually  relaxed,  until  it  is  at  the  present 
time  the  settled  rule,  that  although  an  attorney  cannot  with- 
out special  authority  admit  service  of  juriscUciional  process 
upon  his  client,  yet  it  will  be  presumed  in  all  collateral  pro- 
ceedings, and  perhaps  on  appeal  or  in  error,  that  a  regular 
attorney  at  law  wlio  appeared  for  the  defendant,  though  not 
served,  had  authority  to  do  so.     To  entitle  a  party  who  has 
been  represented  by  an  unauthorized  attorney  to  be  relieved, 
lie  must  negative  the  presumption  of  authority  in  the  attor- 
ney; and  this  he  cannot  ordinarily  do  by  appeal  or  writ  of 
error.     He  must  apply  for  relief  either  by  motion  or  by  bill 
in  equity.     No  examination  of  this  subject  would  be  com- 
plete without  reference  to  the  leading  authorities  in  English 
and  .American  courts.     It  is  laid  down  as  law  in  an  early 
case  in  Salkeld,  that  '  when  an  attorney  takes  on  himself  to 
appear,  the  court  looks  no  further,  but  proceeds  as  if  the 
attorney  had  sufficient  authority,  and  leaves  the  party  to  his 
.action  against  liim.'^     This  rule  has,  we  submit,  no  founda- 
tion in  reason  to  stand  upon.     It  obliges  a  person  to  be 
bound   by   the   unauthorized  act  of   a  mere  stranger.     It 
binds  him  by  the  judgment  of  a  court  without  a  day  in 
court.     It  relieves  the  other  party  of  the  duty  Avhich  in  rea- 
son belongs  to  liim,  viz:  to  serve  his  process  and  to  see,  at  his 
peril,  ^hat  his  adversary  is  in  court.     It  carries  out  this  un- 
soundness  by  compelling  the  lorong  party  to  look  to  the 
attorney.     Then  reason  and  logic  would  say,  if  an  attorney 
appeared  for  mo  without  my  knowledge  or  authority  express 

1  1  Sulk.  SG. 

508 


Chap.  XXII.]       UNAUTnomzED  APrEARANCE.  §499 

or  implied,  I  should  not  be  bound  by  the  act  if  never  ratified 
or  promptly  disavowed,  and  if  the  adverse  party,  being 
ignorant  of  the  want  of  authority  and  carelessly  omitting  to 
serve  process,  or  to  require  the  attorney  to  show  his  author- 
ity, has  been  damaged,  he,  and  not  myself,  should  be  the 
one  to  look  to  the  attorney. 

"That  such  a  rule  as  the  one  laid  down  in  1  Salkeld,  86, 
should  permanently  stand,  without  modification,  as  the  law 
of  enlightened  tribunals,  would  be  impossible.     Bvit,  as  I 
shall  proceed  to  show,  '  the  courts  instead  of  overturning  have 
graduall}^  undermined  it,  till,  if  it  now  stands,  it  is  tottering 
and  ready  to  fall.'     In  Salkeld,  88,    'an  attorney  appeared 
and  judgment  was  entered  against  his  client  and  he  had  no 
warrant  of  attorney,  and  now  the  question  was,  if  the  court 
could  set  aside  the  judgment?     Et  per  cur:  If  the  attorney 
be  able  and  responsible  we  will  not  set  aside  the  judgment. 
The  reason  is,  the  judgment  is  regular  and   the  plaintiff 
ought  not  to  suffer  for  there  is  no  fault  in  him;  but  if  the 
attorney  be  not  responsible  or  suspicious,  we  will  set  aside 
the  judgment,  for  otherwise  the  defendant  has  no  remedy 
and  any  one  may  be  undone  by  that  means.'    Such  a  doctrine 
could  not  impose  on  the  fine  understanding  of  Lord  Mans- 
field, and  the  case  of  Bobson  v.  Eaton,  (K.  B.  1785,  1  Term. 
62),  without  professedly  overruling  the  cases  in  Salkeld,  does 
so  in  effect  by  proceeding  upon  directly  opposite  principles. 
This  will  be  obvious  from  a  brief  statement  of  the  case, 
which  was  an  action  for  money  had  and  received.     The  de- 
fendant pleaded  that  the  plaintiff,  William  Hodgson,  by  his 
attorney,  had  before  sued  the  defendant  and  recovered  a 
judgment  for  the  same  cause  of  action;  that  the  defendant, 
by  order  of  the  court,  paid  the  amount  of  such  recovery  into 
court,  and  the  same  had  been  received  by  the  plaintiff's 
said  attorney.     This  was  apparently  a  good  defense.     To  it 
the  plaintiff  replied  that  he  never  retained  said  Hodgson  to 
sue  the  defendant  or  authorized  him  to  receive  the  money. 
Both  parties  were  innocent  of  fraud.     The  warrant  of  attor- 
ney was  forged  ;  Hodgson,  ignorant  of  the  forgery,  collected 
the  money,  and  in  good  faith  paid  it  to  the  forger.     And 
the  question  was,  could  the  defendant  rely  upon  the  former 
recovery,  or  must  he  pay  the  money  twice?    Kow,  I  suppose, 

500 


§499  LAW  OF  JUDGMENTS.  [Cbap.  XXII. 

if  on  grounds  of  public  policy  a  dcjendant  is  bound  by 
the  act  of  an  unauthorized  attorney  who  appears  for  him, 
the  plaintiff  ought,  upon  the  same  ground,  to  be  bound  by 
the  act  of  an  unauthorized  attorney  who  appears  for  him. 
The  principle  is  the  same.  It  was  decided  that  the  defend- 
knt  must  again  pay  the  money.  And  the  ground  of  the  de- 
cision was  that  the  attorney  who.  prosecuted  the  former  suit 
in  the  plaintiff's  name  had  no  authority  for  so  doing." 
Judge  Dillon  then  proceeds  to  consider  the  cases  in  New 
York  upon  this  subject,  and  then  adds:  'In  other  States 
it  is  now  the  constant  practice  to  relieve  parties,  sometimes 
by  motion  and  sometimes  in  chancery,  from  judgments  ren- 
dered against  them  in  consequence  of  the  totally  unauthor- 
ized acts  of  a  pragmatical  attorney. '^ 

"  And  in  England,  in  the  Court  of  Exchequer,  the  rule  as 
laid  down  in  Salkeld,  has  quite  recently,  and  upon  great 
consideration,  been  criticised  and  partially,  at  least,  over- 
turned. See  Bayley  v.  BucMand  (1  Exch.  1  TV.  H.  &G.  1), 
where  Rolfe,  B.,  alluding  to  1  Salkeld,  88,  says:  '  The  non- 
responsibility,  or  suspiciousness,  of  the  attorney,  is  but  a 
vague  sort  of  criterion  of  safety  to  the  defendant,  and  by 
the  hypothesis  the  defendant  is  wholly  without  blame,  and 
may,  notwithstanding,  be  ruined.  It  is  true  that  the  plaint- 
iff is  equally  blameless,  but  then  the  plaintiff,  if  the  judg- 
ment be  set  aside,  has  his  remedy  against  the  defendant  as 
before,  and  suffers  only  the  dela}^  and  the  possible  loss  of 
costs.'  And  thecourt,  Avhere  the  appearance  for  the  defendant 
is  unauthorized,  proceeds  to  make  a  distinction  between  cases 
where  process  has  been  served,  and  cases  where  it  has  not. 
If,  says  the  court,  the  process  is  served,  the  plaintiff'  innocent 
of  any  fraud  or  collusion,  and  the  attorney  is  responsible, 
the  party  for  whom  the  attorney  appeared  is  confined  to  his 
remedy  against  him.  The  reason  given  is,  that  here  the 
plaintiff  is  without  blame,  and  the  defendant  is  guilty  of 
negligence  in  not  appearing  and  making  his  defense  by  his 
own  attorney,  if  he  has  any  defense  on  the  merits.     But,  on 


1  See  Critchfieldi'.  Porter,  3  Ohio, 
518;  Shelton  v.  Tiffiu,  6  How.  1G3; 
Campbell  v.  Bristol,  19  Wend.  101; 
Truett  V.  Waiuwriglit,   4  Gilm.  420; 


DeLouis  v.  Meek,  2  G.  Greene,  55; 
McKelway  r.  Jones,  2  Harr.  (N.J.) 
345;  Price  u.  Ward,  1  Dutch.  225. 


510 


Chap.  XXII.]  SUEPRISE  AND  ACCEDEXT. 


i2490-500a 


the  other  hand,  '  if  the  plaintiff,  luithout  serving  the  defendant, 
accept  the  appearance  of  an  unauthorized  attorney  for  the 
defendant,  he  is  not  wholly  free  from  the  imputation  of  neg- 
ligence; the  law  requires  him  to  give  notice  to  the  defend- 
ant by  serving  the  writ,  and  he  has  not  done  so.  The  de- 
fendant then  is  wholly  free  from  blame,  andpZai^^i^not;  so 
we  must  set  aside  the  judgment. 


1111 


g  500.  Authorized  Act  of  Regular  Attorney. — If  the 
attorney  is  authorized  to  appear,  the  jurisdiction  over  the 
defendant  is  perfect,  and  the  subsequent  action  of  the 
attorney,  not  induced  by  the  fraud  of  the  adverse  party,  is 
binding  on  the  client  at  law  and  in  equity.  According  to 
Lord  Hardwicke,  ' '  When  a  decree  is  made  by  consent  of 
counsel,  there  lies  not  an  appeal  or  rehearing  though  a 
party  did  not  really  give  his  consent;  but  his  remedy  is 
against  his  counsel;  but  if  such  decree  Avas  b}'  fraud  and 
covin  it  may  be  relieved  against,  not  by  rehearing  or  appeal, 
but  by  original  bill;"-  and  such  beyond  doubt,  is  still  the 
rule.^  The  rule  that  a  party  cannot  in  equity  find  relief 
from  the  consequence  of  his  own  negligence,  or  of  a  mis- 
take of  the  law,  is  equally  applicable  where  the  mistake  or 
neglect  is  that  of  his  attorney  employed  in  the  management 
of  the  case.* 

§  500a.  Mistake,  Surprise,  and  Accident. — Mistakes  of 
fact,  whether  made  by  the  court  or  by  one  of  the  parties, 
have  been  successfully  employed  as  grounds  for  obtaining 
the  interposition  of  courts  of  equity,  and  securing  the  relief 
of  the  party  injured  by  the  mistake.^    Thus  a  suit  was  brought 


iHarshey  u.  Blackmarr,  20  Iowa, 
161.  Judge  Dillon  refers  all  those 
inclined  to  pursue  the  subject  further 
in  the  light  of  English  adjudications, 
to  Doe  V.  Eyton,  3  B.  &  Aid.  785; 
Hubbard  v.  Phillips,  13  M.  &  W.  702;. 
U  L.  J.  (N.  S.)  103;  Williams  v 
Smith,  1  Dowd.  P.  C.  G32;  Murdy  v 
Newman,  1  Exch.  402;  Odell  v.  Odell, 
1  Irish  Exch.  81;  Morgan  v.  Thornc,  7 
M.  &  W.  400;  Hawbridge  u.  De  La 


Crouce,  3  M.  G.  &  S.  742;  Stanhope 
V.  Firman,  3  Bing.  N.  C.  303. 

sBradish  v.  Gee,  1  Ambl.  Ch.  229. 

3Gi£ford  v.  Thorn,  1  Stock.  702, 
722;  Jones  v.  Williamson,  5  Cold, 
371. 

4Wynn  v.  Wilson,  Hemp.  698; 
Chester  v.  Apperson,  4  Heist.  639; 
Shricker  v.  Field,  9  Iowa,  306;  Win- 
chester V.  Grosvcnor,  48  111.  517. 

5  Chase  v.  Manhardt,  1  Bland's  Ch. 
350. 

51] 


gyOOa  LAW   OF  JUDGMENTS.  [Chap.  XXII. 

on  a  note,  and  the  defendants  made  no  defense,  and  "the  at- 
torney who  was  attending  the  case  made  a  mistake  in  calcu- 
lating the  interest  on  the  note,  and  when  the  case  was  called 
for  judgment,   the  judge,  without  calculating  the  amount, 
asked  the  attorney,  who,  being  under  a  mistake  himself,  re- 
plied §405.55,  and  the  judgment  was  rendered  by  mistake 
for  that  amount,  when  it  should  have  been  for  $507.80." 
The  plaintiff  discovering  the  mistake  after  it  was  too  late  to 
correct  it  on  motion,  brought  a  suit  in  equity  to  correct  it, 
by  compelling  the  defendant  to  pay  the  amount  left  out  by 
mistake  ;  and  it  was  held  that  equity  had,  under  the  circum- 
stances, jurisdiction  to  grant  the  relief  sought.^     It  seems  to 
be  well  established  b}-  the  authorities,  that  a  mistake  in  cal- 
culating the  amount  due  by  which  the  judgment  was  entered 
for  a  wa'ong  sum,  may  be  corrected  in  equity.     An  error  in 
computation  is  not  necessarily  attributable  to  negligence, 
for    "the  most  careful   and  expert  calculators  sometimes 
make  mistakes."^     So  where  a  judgment  is  occasioned  by 
the  mistake  of  the  judge,  the  party  against  whom  it  was  en- 
tered may  have  relief  in  equity.     In  Georgia  a  meritorious 
bill  of  exceptions  was  dismissed  because  of  a  mistake  in  a 
date  made  by  the  certifying  judge.     A  bill  was  then  filed 
to  enjoin  the  judgment,  and  for  a  new  trial.     The  Supreme 
Court  of  the  State  in  passing  upon  this  case,  said  :  "Courts 
of  equity  are  open  to  grant  relief  in  cases  of  great  injustice 
and  wrong,  arising  from  mistake  without  negligence  and 
fault  upon  the  part  of  counsel  or  parties.     The  dismissal  of 
the-case  was  owing  to  the  misdate  of  the  judge  in  his  certifi- 
cate.    It  was  the  duty  of  the  judge  to  have  put  the  correct 
date.     The  fault  was  not  one  for  which  the  law  should  pun- 
ish parties,  and  for  which,  under  the  rules,  the  case  was  dis- 
missed.    It  was  not  beyond  the  reach  of  a  court  of  equity  to 
interpose  and  take  jurisdiction  of  the  parties  and  subject 
matter  ;  and  if  it  appeared  there  was  merit  in  the  case,  and 
injustice  would  result  from  the  act  or  mistake  of  the  judge 
in  the  premises,  it  was  the  duty  of  a  court  of  equity  to  en- 
join the  collection  of  the  judgment,  and  stay  proceedings 


1  'Wilson  V.  Boughton,  50  Mo.  17 ; 
Bce,  to  same  effect,  Boon  v.  Miller's 
^  Exrs.,  16  Mo.  457. 

512 


2  Barthell  v.  Eoderiek,  34  Iowa, 
518  ;  Partridge  r.  Harrow,  27  Iowa, 
9G. 


Cheap.  XXII.] 


DEFENSES  AT  LAW. 


!§500a-501 


until  a  fair  and  full  hearing  upon  the  merits  had  been  had."' 
But  equity  will  never  interpose  to  vacate  or  enjoin  a  judg- 
ment on  the  ground  of  mistake  or  ignorance  of  law.^  In  ad- 
dition to  mistake  there  are  other  causes,  which,  tliough  not 
chargeable  to  any  fraud  or  misconduct  of  the  prevailing 
party,  are  nevertheless  sufficient  to  warrant  the  interposi- 
tion of  equity  to  prevent  the  enforcement  of  an  unjust  judg- 
ment or  decree.  These  other  causes  include  sickness,  acci- 
dent, surprise,  and  all  other  causes  by  reason  of  which,  and 
without  any  fault  on  his  part,  the  losing  party  is  unable  to 
present  his  cause  of  action  or  defense.^ 

§  501.  Defenses  Cognizable  at  La-w  and  in  Equity. 
If  a  party,  sued  at  law,  has  a  defense  of  an  equitable  char- 
acter, but  of  which  a  court  of  law  can  take  cognizance,  he 
need  not,  in  general,  present  his  equitable  defense,  but 
may  allow  judgment  by  default  to  be  taken  against  him,  and 
may  afterwards  assert  his  equitable  defense  for  the  purpose 
of  obtaining  relief  against  the  judgment. •*  A  recovery  in  an 
action  of  ejectment,  in  which  nothing  but  the  legal  title  is 
in  issue,  is  no  bar  to  any  proceedings  in  chancery  founded 
on  the  equitable  title.'  But  if  the  party  sued  at  law,  makes 
his  defense  there,  he  is  considered  as  electing  to  defend  at 
law,  and  is  bound  to  present  every  defense  which  he  can.*' 
His  election  to  defend  at  law  is  considered  as  irrevocably 
made  "by  offering  any  defense  whatever,  it  matters  not 
whether  by  demurrer  to  the  declaration,  by  plea  in  abate- 
ment, or  in  bar."'  Cases  have  occurred  in  which  it  is  said 
that  the  rule  that  he  who  makes  an  ineffectual  defense  at 


1  Kohn  V.  Lovett,  43  Ga.  180 ;  see, 
also,  Brewer  v.  Jones,  44  Id.  71, 
where  the  mistake  for  which  the 
judgment  was  opened  in  equity  was 
the  mistake  of  the  judge  in  failing  to 
mark  the  name  of  counsel  to  the  de- 
fense of  a  suit,  in  consequence  of 
which,  judgment  was  entered  by  de- 
fault. 

-  Hubbard  v.  Martin,  8  Yerg.  498  ; 
Kichmond  v.  Shippen,  2  Pat.  &  H. 
327  ;  Meem  v.  Eucker,  10  Gratt.  506  ; 
Shrick^n  v.  Field,  9  Iowa,  3Gu. 

(33) 


sKieetJ.  Eailroad  Bank,  7  Humph. 
39  ;  White  v.  Washington,  5  Grutt. 
C45. 

4  Clay  I).  Fry,  3  Bibb.  248. 

5  Allen  V.  Stephanes,  18  Tex.  G58; 
Brown  v.  W^yncoop,  2  Blkf.  230. 

c  Heudrickson  v.  Hinckley,  17  How. 
U.  S.  443;  Curtis  v.  Cisna's  Admr.,  1 
Hamm.  432;  Biutou  v.  Hynsen,  14 
Ark.  32. 

iLe  Guen  v.  Gonveneur,  1  John 
Cas.  505;  Arriugtour.  Washington^ 
14  Ark.  218, 

513 


§§501-502  LAW  OP  JUDGMENTS.  [Chap.  XXII. 

law  will  not  be  allowed  to  call  equity  to  liis  aid,  will  some- 
times j-ield  to  a  case  of  peculiar  and  extraordinary  hardship. 
The  defense  of  usury  being  presented  at  law  before  a  justice, 
was  by  him  disallowed.  The  appeal  attempted  to  be  taken 
from  his  j  adgment  was  dismissed  through  no  fault  of  the  ap- 
pellant, but  on  account  of  some  error  of  the  justice  or  his  clerk. 
The  appellant  was  then  granted  relief  in  equity  on  the  ground 
"that  it  would  be  highly  unjust  and  unreasonable  to  turn  the 
party  away  because  he  had  tried  to  make  his  defense  at  law."^ 
It  is  not  improbable  that  this,  like  many  other  cases  of  "pe- 
culiar and  extraordinary  hardship,"  has  rather  occasioned  a 
violation,  than  established  an  exception  to  the  true  rale. 

§  502.  Legal  Defenses,  Neglect  in  Presenting. — "While 
the  law  affords  complete  remedies  to  those  who  are  diligent; 
it  cannot  level  its  rules  to  subserve  the  purposes  of  those 
who  are  guilty  of  negligence  and  delay.'"     It  is,  therefore, 
a  general  rule  that  parties  are  to  be  held  to  the  exercise  of 
caution  and  diligence  in  the  management  of  their  law  suits, 
and  are  not  to  be  allowed  a  double  opportunity  of  presenting 
their  defenses.^     A  complainant  in  equity  seeking  to  avoid 
the  effect  of  a  judgment  against  him  at  law,  must,  therefore, 
always  disclose  a  sufficient  excuse  for  not  making  his  defense 
in  the  original  action.*     One  who  purchases  real  estate  for 
which  an  action  of  ejectment  is  pending,  if  he  rely  upon 
liis  grantor  or  his  grantor's  attorney  to  conduct  the  defense 
without  making  any  agreement  with  them  in  reference  to 
the  subject,  cannot  have  the  judgment  set  aside  in  equity, 
on  the  ground  that  he   did   not  know  of  the   time  of  the 
trial.     Those  who  purchase  law  suits  must  not  neglect  to 
defend  them.^     Nor  will  any  judgment  be  opened  for  want 


iCave  V.  Davis,  5  Monr.  392. 

SMorrisi;.  Deuton,  2  Cal.  378. 

3  Casey  v.  Gregory,  13  B.  Monr. 
505;  Eobuck  v.  Harkins,  38  Geo.  171; 
Slack  u.  Wood,  9  Gratt.  40;  Lansing 
V.  Eddy,  1  Johns.  Ch.  49;  Parker  v. 
Jones,  5  Jones'  Eq.  276;  Tapp  v. 
Eankin,  9  Leigh,  478;  Wright  v. 
King,  Har.  Ch.  12;  Powell  v.  Boring, 
44  Geo.  1G9;  Hiley  v.  Hartridge,  44 
Geo.G23. 

514 


4]Menifee  v.  Myers,  33  Tex.  691; 
Yancy  v.  Fenwick,  4  Hen.  &  M. 
423;  Jevne  v.  Osgood,  57  111  340. 

5Mastick  v.  Thorp,  29  Cal.  444. 
'  •  By  refusing  to  relieve  parties  against 
the  consequences  of  their  own  neglect, 
it  (the  law)  seeks  to  make  them  vigi- 
lent  and  careful."  Ewingu.  McNaiiy, 
20  Ohio  S.  315. 


Chap.  XXII.]  WANT  or  diligence. 


§g502-503 


of  proper  evidence  to  identify  property/  nor  for  any  negli- 
gence in  making  proofs  at  a  trial.  '  Sureties  cannot  bo  re- 
lieved because  their  principal  was  granted  an  extension  of 
time  before  the  suit,  the  interposition  of  that  defense  not 
being  prevented  by  fraud,  accident,  or  the  wrongful  act  of 
the  plaintiff.  ^  In  some  cases  relief  has  been  granted  from 
judgments  based  upon  usury,*  and  also  upon  gambling 
debts, '  probably  because  these  causes  of  action  were  re- 
garded with  great  aversion  ;  but  these  cases  are  opposed  by 
other  adjudications  of  at  least  equal  weight, "  and  they  cer- 
tainl}'  make  inroads  on  well-established  principles,  without 
any  sufficient  justification  for  so  doing. 

§  503.  Want  of  Diligence. — In  the  management  of  a 
case,  the  parties  are  bound  to  use  such  a  degree  of  diligence 
"as  is  requisite  in  the  ordinary  business  of  life."  '^  No  liti- 
gant can  come  within  the  rule  in  respect  to  diligence,  who 
does  not  give  his  pergonal  attention  to  his  case,  at  least,  so 
far  as  to  place  it  in  the  hands  of  his  counsel,  and  to  afibrd 
that  counsel  all  the  means  and  information  necessarv  to 
conduct  his  part  in  the  litigation.  A  party  cannot  have  an 
injunction  because  he  wrote  to  an  attorney  to  attend  to 
the  case.  He  will  not  be  excused  from  attending  to  it 
himself,  until  he  shows  that  he  could  not  have  done  so,  on 
account  of  circumstances  not  imputable  to  himself.  '^  If  a 
party  merely  Avrites  to  an  attorney  to  attend  and  make  his 
defense,  but  pays  no  fee,  and  institutes  no  inquiry  in  rela- 
tion to  the  case,  and  it  happens,  that,  from  misapprehension 
or  otherwise,  the  attorney  does  not  make  such  defense,  the 
"  laches  are  too  gross  to  be  relieved.  It  is  the  duty  of  liti- 
gants to  be  vigilant  in  caring  for  tlieir  interests,  and  they 


1  Pickens  v.  Yarborough,  30  Ala. 
408. 

2Yantes  v.  Burclett,  3  Mo.  457. 

3  Vilas  U.Jones,  1  N.  Y.  274. 

4  Frierson  7'.  Moody,  3  Humph. 
5G1;  but  equity  will  only  take  juris- 
diction where  the  defense  of  usury 
could  not  have  been  made  at  law 
without  great  embarrassment  and 
difficulty,  in  conseqrience  of  the  gi"eat 


number  of  usurious  contracts  and  se- 
curities. Id.,  and  Lindsay  v.  James, 
3  Cold.  477;  Buchanan  v.  Nolin,  3 
Humph.  63,  559. 

5  Woodson  V.  Barrett,  2  Hen.  Sc  M. 
8G;  Skepworth  v.  Strother,  3  Band. 
214. 

GGiddens  v.  Lea,  3  Humph.  133. 

1  Burton  v.  Wiley,  26  Verm.  430. 

sStanard  v.  Kogers,  4  II   &M.  438. 

515 


g503  LAW  OF  JUDGMENTS.  [Chap.  XXII. 

are  not  to  prcsnmo  that  a  hiwyer,  to  wliom  they  have  paid 
nothing,  from  whom  thc}^  have  never  heard,  is  taking  care 
of  their  interests."^  And  where  the  jbarty  retains  an  attor- 
ney, but  does  not  attend  court,  nor  furnish  witnesses,  he 
cannot  be  relieved  on  showing  that  he  fears  the  attorney 
was  in  the  interest  of  his  adversary. "  Equity  will  not  re- 
lieve on  the  ground  of  the  absence  of  a  witness  who,  with 
diligence,  could  have  been  procured,  nor  on  the  ground  that 
a  witness  was  guilty  of  perjury,  nor  because  the  suitor  was 
absent  from  court;  for  it  is  his  business  to  be  there. ^ 
Neither  is  a  joarty  to  be  relieved  because  he  failed  to  prove 
his  defense  for  want  of  the  evidence  of  the  nominal  plaintiff, 
who,  contrary  to  the  expectations  of  the  defendant,  was  not 
present  at  the  trial.  *  Sureties  on  whom  process  was  served, 
and  who  did  not  consult  their  principal,  and  who  failed  to 
interpose  any  defense,  cannot  enjoin  the  judgment  for  usu- 
ry.^ A.  was  summoned  as  a  garnishee  in  a  suit  of  B.  against 
C,  and  having  answered  that  he  owed  C.  a  specified  sum, 
judgment  was  entered  accordingly.  .  Afterward  A.  was  sum- 
moned in  a  suit  by  D.  against  C,  when  he  again  answered 
that  he  owed  C.  the  sum  for  which  judgment  had  already 
been  given,  jind  a  second  judgment  was  thereupon  entered 
against  A.,  and  by  him  was  paid.  When  the  first  judgment 
was  about  to  be  enforced,  A.  sought  to  enjoin  its  collection 
on  the  ground  that  he  had  no  notice  of  its  rendition  when 
he  paid  the  second  judgment,  and  that  he  was  absent  from 
the  State  for  six  weeks  after  being  summoned  in  the  first 
action.  But  the  court  thought  that  he  might  have  known 
of  the  first  judgment  by  exercising  the  slightest  diligence, 
and  refused  to  render  him  any  aid.**  One  who  has  permit- 
ted judgment  by  default  to  be  rendered  against  him  upon  a 
note,  will  not  be  relieved  from  the  judgment  on  the  sole 
ground  that  the  note  was  given  on  a  condition  which  had 
failed.-' 


1  Hill  V.  BovrycY,  18  Gratt.  3G4. 

2  Albro  V.  Dayton,  28  111.  325. 

3  Gott  V.  Carr,  G  G.  &  J.  309;  DiUy 
V.  Barnard,  8  G.  &  J.  171. 

4  Wilder  v.  Lee.  64  N.  C.  50, 

516 


5  Smith  V.  Powell,  50  111.  21;  Lucas 

V.  Spencer,  27  111.  15. 
«  Houston  V.  Wolcott,  7  Iowa,  173- 
~'  Eabun  v.  Shortbridge,  2  Bluckf. 

480. 


Chap.  XXII.]    REPRESENTATIVES  OF  DECEASED.  §504-505 

^  504.  Receipt  and  Release. — Formerly  it  seems  that  a 
case  could  be  reopened  in  equity  upon  the  finding  of  a  receipt 
or  release,  or  other  "evidence  of  a  permanent  and  unerring 
nature  to  points  before  in  issue."  ^  This  exception  to  the 
general  rule,  requiring  prudence  and  diligence  on  the  part 
of  the  defendant,  is  founded  on  the  case  of  Countess  Gains- 
borough V.  Gifford,  2  Pcere  Williams,  p.  424,  in  which  it  is 
said  that  relief  will  bo  granted  where  defendant  finds  plaint- 
iff's receipt  which  had  been  lost,  or  if  the  plaintiff's  book 
appeared  to  be  crossed  and  the  money  paid  before  action 
brought.  But  if  this  case  is  to  be  understood  as  granting 
relief  where  the  defense  is  payment  or  release,  upon  any 
other  terms  or  under  any  other  circumstances  than  if  any 
other  kind  of  defense  had  been  made,  it  cannot  be  regarded 
as  the  law  at  the  present  time.  Where  a  person  against 
whom  a  judgment  had  been  obtained,  paid  a  portion  there- 
of, but,  in  an  action  upon  this  judgment,  neglecting  to  plead 
payment,  suffered  the  second  judgment  to  be  recovered 
without  the  allowance  of  any  of  his  payments,  it  was  held 
that  neither  he  nor  his  bail  could  be  relieved  in  equity;  and 
that  this  case  formed  no  exception  to  the  rule,  that  relief  will 
not  be  granted  "against  a  judgment  at  law  on  the  ground 
of  its  being  contrary  to  equity  unless  the  defendant  in  the 
judgment  was  ignorant  of  the  fact  in  question  pending  the 
suit  or  it  could  not  have  been  received  as  a  defense,  or  un- 
less he  was  prevented  from  availing  himself  of  the  defense 
by  fraud,  accident  or  the  act  of  the  opposite  party  unmixed 
with  negligence  or  fault  on  his  part."-  But  where  judgment 
was  recovered  against  C.  and  K.,  and  afterwards  revived 
against  K.,  C.  having  died,  it  was  subsequently  to  such  re- 
vivor successfully  resisted  by  K.,  on  the  ground  that  C. 
paid  the  judgment  in  his  lifetime,  of  which  fact  K.  could 
not  procure  any  evidence  when  ho  suffered  the  judgment  of 
revivor.^ 

§  505.    Representatives  of  Deceased  Persons.  —  It  is 


1  Mitford's  Ch.  p.  78  ;  Winthrop  v.\     «  Foster  v.  Wood,  4  Johns.  Ch.  90; 
Lane,  3  Des.  324;   Story's  Eq.  Jur.  j  Duncan  v.  Lyon,  3  Johns.-Ch.  356; 
$879  ;   see,  also,   Vatbir  v.  Zane,  G  i  Barker  v.  Elkius,  1  Johns.  Ch.  4G5. 
Gratt.  246.  I     ^  i^ig^p  ^  Winans,  20  lud.  428. 

517 


g  §505-500  LAW  or  judgments.  [Cbap.  XXIT. 

obvious  that  an  administrator  or  executor  is  not  to  be  hold 
to  great  strictness  in  relation  to  a  defense  arising  in  the 
lifetime  of  the  deceased,  without  allowing  the  adverse  party 
to  take  undue  advantage  of  his  necessarily  superior  knowl- 
edge of  the  matters  in  controversy.     The  fact,  that  the  per- 
son seeking  relief  from  a  judgment  is  an  administrator,  is  a 
material  fact  in  considering  the  question  of  laches,  because 
it  is  not  probable  that  he,  with  due  diligence,  could  make 
as  complete  a  defense  as   his  intestate  could,   if   living.^ 
That  since  the  trial,  the  administrator  has  discovered  wit- 
nessess  by  whom  proof  of  payment  can  be  made,  is  a  good 
ground  for  relief,  for  the  reason  that  he  had  no  means  of 
tracing  the  payment  made  by  the  deceased,  and  is  therefore 
exempted  from  the  rule  that  no  relief  can  be  granted  where 
the  defense  could  be  made  at  law.'     An  administrator  or 
executor,  who,  believing  that  he  has  assets  of  the  estate 
ample  for  the  payment  of  all  its  debts,  suffers  judgment  to 
be  entered  against  him,  will  be  relieved  in  equity,  if  those 
assets  become  insufficient  through  an  unexpected  deprecia- 
tion of  their  value.     Otherwise  he  would  be  made  responsi- 
ble, without  any  fault  on.  his  part,  the  defense  arising  sub- 
sequently to  the  judgment  being  one  that  he  could  not  make 
available  in  the  original  cause  by  any  procedure  provided 
at  law.^ 

§  o05a.  A  Judgment  against  a  Trustee  in  a  suit  to 
charge  the  trust  estate,  will  be  enjoined  on  the  application 
of  the  cestui  que  trust,  if  it  appear  that  the  latter  was  not  a 
party  to  the  suit,  and  thiit  the  cause  of  action  sued  upon 
was  not  a  valid  claim  against  the  trust  estate,  and  that  the 
interest  of  the  trustee  was  best  subserved  by  having  judg- 
ment entered  against  him.'* 

g  506.  Known  Defenses  Must  be  Made. — All  matters, 
known  at  the  time  of  the  trial  at  law,  or  capable  of  being 
ascertained  by  reasonable  inquiry,  ought  not  to  be  avail- 
able in  a  chancery  suit.  The  subsequent  discovery  of  facts 
known  to  the  witnesses  called  at  the  trial,  but  not  known  to 


1  Hewlett  V.  Hewlett,  4  Edw.  Cb.  7. 
"  Keederu.  Duncan's  Admr.,  1  Bibb, 

368. 

518 


3  Miller's  Exrs.  v.  Rice,   1  Eand. 
438  ;  Pickett  v.  Stewart,  1  Rand,  478. 

4  Meyer  v.  Butt,  44  Geo.  471. 


Chap.  XXTI.]      DISCOVERY  AFTEE  JUDGMENT.  g§50G-507 

the  parties  calling  them,  is  no  ground  of  relief.'  There 
must  be  an  end  to  litigation.  No  doubt  the  courts  are  ex- 
tremely cautious  in  granting  relief  from  a  judgment  on  the 
ground  that  the  party  injured  was  ignorant  of  the  existence 
of  his  defense  until  after  the  rendition  of  the  judgment.  ^ 
The  true  rule  upon  this  subject  is  thus  expressed  in  a  recent 
decision  :  "Equity  will  not  relieve  a  party  against  a  judg- 
ment at  law,  on  the  ground  of  a  defense  of  which  he  was 
ignorant  until  after  the  judgment  was  rendered,  unless  he 
shows  that,  by  the  exercise  of  ordinary  diligence,  he  could 
not  discover  it,  or  that  he  was  prevented  from  employing 
such  diligence  by  fraud,  accident,  or  the  act  of  the  opposite 
party,  unmixed  with  negligence  on  his  part."^  But  when- 
ever a  case  arises  in  which  a  party  has  an  unjust  judgment 
or  decree  rendered  against  him,  owing  to  his  ignorance  of 
his  defense,  and  the  circumstances  are  such  that  his  igno- 
rance exists  without  any  fault,  laches,  or  want  of  diligence 
on  his  part,  he  is  certainly  entitled  to  relief  in  equity.  * 
"Whenever  a  party  asks  a  court  of  equity  to  grant  him  a 
new  trial,  he  must  shoAv  some  reason  for  not  getting  it  at 
law.^  In  Virginia,  a  judgment  was  enjoined  on  account  of 
a  mistake  made  by  the  jury — the  making  of  such  mistake 
not  being  known  in  time  to  be  made  a  ground  for  a  new 
trial.  "^  That  the  application  for  a  new  trial  at  law  was  not 
heard,  on  account  of  a  sudden  and  unexpected  adjournment 
of  the  court  for  the  term  without  doing  any  business,  and 
before  either  the  applicant  or  his  counsel  could  get  to  court, 
is  a  good  ground  for  relief  in  chancery.'" 

§  507.  Discovery  after  Judgment. — A  material  difference 
exists  between  ignorance  of  the  facts  constituting  a  defense, 
and  ignorance  of  the  evidence  necessary  to  establish  those 
facts.     A  defendant  who  has  no  intimation  of  the  existence 


1  Harrison  v.  Harrison,  1  Litt.  137, 
bvit  see  Stowell  u.Eldred,  26  Wis. 
504. 

*  George  v.  Alexander,  6  Cold,  641; 
but  see  luglehart  v.  Mayer,  4  Johns. 
Ch.  Md.  p.  514. 

3  Garrett  v.  Lynch,  45  Ala.  211. 

*  Wales  V.  Bank  of  Michigan,  Har. 


// 


<yt 


Ch.  308;  Hubbard  v.  Hobson,  Breese, 
147;  Inglehart  v.  Lee,  4  Md.  Ch.  514; 
Cape  Sable  Go's.  Case,  3  Bland.  600; 
Baltzell  V.  Randolph,  0  Fla.  3GG.         ^ 

sMastick  u.  Thorp,  29  Cal.  444; 
Harrison  v.  Harrison,  1  Litt.  137. 

6  Rust  I'.  Ware,  6  Gratt.  50. 

"'  Tarver  v.  McKay,  15  Geo.  550. 

519 


§507  LAW  OP  JITDGMENT3.  [Cliap.  XXII. 

of  a  defense,  and  who  therefore  believes  the  cause  of  action 
produced  against  him  to  be  good  and  valid,  is  not  put  upon 
inquiry,  and  may  suffer  judgment  to  be  rendered  against 
liim  without  being  guilty  of   any  want  of   reasonable  dili- 
gence.    But  a  defendant,  knowing  of  the  existence  of  some 
defense  is  put  upon  inquiry,  and  is,  therefore,  bound  to  exer- 
cise the  highest  degree  of  diligence  in  discovering  and  pro- 
ducing the  evidence  necessary  to  establish  all  the  facts  ma- 
terial to  his  defense  and  of  which  he  has  any  knowledge. 
If  the  requisite  evidence  can  be  obtained  only  from  his  ad- 
versary, he  should  at  once  take  such  steps  as  are  necessary 
to  compel  his  adversary  to  disclose  it.  Therefore,  the  submis- 
sion to  a  trial  at  law  precludes  a  party  from  going  into  equity 
to  compel  plaintiff  to  disclose  evidence  in  relation  to  any 
matter  of  which  the  defendant  had  any  knowledge  or  intima- 
tion previous  to  the  trial  at  law.'     Discovery  cannot  be  had 
after  judgment,  on  the  ground,  that  the  defense  was  com- 
pletely in  the  knowledge  of  the  plaintiff;^  nor  because  the 
defendant  had  a  credit  or  set-off  which  he  had  no  evidence 
in  his  possession  to  prove .     It  must  appear,  in  addition  to 
the  fact  that  the  credit  or  defense  can  be  established  by  the 
plaintiff,  that  the  defendant  was  not  aware  of  the  fact  now 
sought  to  bo  brought  out,  prior  to  the  trial.  ^     But  if  a  party, 
exercising  due  prudence  and  diligence,  is  not,  at  the  trial, 
aware  of  the  fact  constituting  a  good  defense,  he  may,  after 
judgment,  if  such  fact  is  to  be  established  only  by  the  oath 
of  his  adversary,  go  into  equity  and  procure  a  new  trial  and 
a  discovery.     "To  preclu.de  a  party  from  redress,  because 
he  has  submitted  to  a  trial  at  law,  without  going  into  chan- 

1  Campbell  v.  Briggs,  3  Kob.  La.    ther  appears  that  the  losing  party  had 


110;  Green  v.  Massie,  21  Gratt.  358; 
Barker  r.  Simpson,  1  John.  Oh.  4G5; 
Brown  v.  Swan,  10  Pet.  497;  Thur- 
mond V.  Durham,  3  Yerg.  90;  Norris 
V.  Hume,  2  Leigh,  334. 

2  Norris  r.  Denton,  2  Cal.  378.  But, 
it  is  said,  a  party  has  a  right  to  rely 
on  the  presumption  that  his  adversary 
will  not  commit  perjury.  If  his  op- 
ponent, being  called  as  a  witness, 
against  himself,  testifies  falsely  and 
thereby  obtains  judgment;  and  it  fur- 

520 


no  personal  knowledge  of  the  facts, 
and  was  therefore  obliged  to  depend 
on  his  adversary,  the  judgment  will 
be  set  aside  in  equity,  upon  showing 
that  clear  proofs  have  been  obtained 
since  the  trial  establishing  the  false- 
hood of  the  testimony  through  which' 
the  judgment  was  secured.  Stowell 
V.  Eldred,  26  Wis.  504. 

=>  George  v.  Strange's  Ex.,  10  Gratt. 
499;  Faulkner  v.  Harv/ood,  6  Rand. 
125. 


Chap.  XXII.]  NEGLECT   OP   COUNSEL.  g^507-508 

eery  for  a  discovery,  would  cut  up  this  branch  of  remedial 
justice  by  the  roots  aud  oblige  every  defendant  at  law  to  file 
a  bill  of  discovery  in  the  first  instance.  The  discovery  of 
new  matter  after  a  trial  at  law,  which  was  within  the  knowl- 
edge of  the  plaintiff,  but  of  which  defendant  had  no  informa- 
tion, and  nothing  to  lead  him  to  an  opinion  even  that 
matters  were  different  from  the  ostensible  case  presented  by 
the  plaintiff,  is  sufficient  to  authorize  equitable  relief,  "i 

g  508.  Neglect  or  Error  of  Counsel. — It  is  undoubtedly 
the  true  rule,  that  neither  the  ignorance,  the  blunders  nor 
the  misapprehension  of  counsel,  not  occasioned  by  the  ad- 
verse party,  is  any  ground  for  vacating  a  judgment  or  de- 
cree. 2  A  court  of  equity  will  not  grant  relief  on  the  ground 
of  rights  lost  by  a  misapprehension  of  the  rules  of  practice,  3 
nor  because  counsel  was  surprised  at  a  ruling  which  de- 
prived him  of  the  right  of  review  on  appeal.  "It  would  be 
an  extraordinary  interposition  on  the  part  of  a  court  of 
equity,  to  set  aside  a  judgment  obtained  for  aught  that  ap- 
pears to  the  contrary,  after  a  full  and  fair  investigation  upon 
the  merits  before  the  circuit  judge,  merely  upon  the  ground 
that  counsel  had,  by  a  mistake  at  law,  cut  off  his  right  to 
review."*  Neither  will  relief  be  granted  on  the  ground  that; 
an  attorney  through  design  or  ignorance,  mismanaged  the 
defense,^  or  that  the  client  being  absent  on  account  of  sick- 
ness, the  counsel,  through  a  misapprehension  of  the  facts, 
consented  to  the  decree;*'  nor  because  an  error  was  made  in 
preparing  statement  for  new  trial  in  a  tax  suit,  by  which 
error,  the  statement  showed  that  the  $  appeared  before  the 
figures  on  the  roll,  when  in  fact  the  assessment  was  void  for 
want  of  such  $.  It  is  the  duty  of  attorneys  to  prepare  their 
statements,  so  as  to  show  such  errors  of  the  subordinate 
court,  as  they  intend  to  rely  on  in  the  appellate  court;  and 
the  failure  to  perform  this  duty  is  an  omission  so  necessari- 
ly chargeable  to  negligence  and  want  of  ordinary  care  and 
diligence,  that  it  cannot  furnish  any  ground  for  relief  in 

1  Winthrop  v.  Lane,  3  Des.  323.        I      4  Farmer's  Loan  Co.  v.  Walworth 

2  Boston   V.    Haynes,    33    Cal.   31;  j  Co.  Bank,  23  Wis.  249. 

White  V.   Bank  of  U.  S.,  6  Hamm.       s  Burton  v.  Hynson,  1-i  Ark.  32. 
5^9.  s  Burton  v.  Wiley,  26  Vt.  430. 

2  Dibbo  V.  Truluck,  12  Fla.  185.        I 

521 


gg50S-509  LAW  OF  JUDGMENTS.  [Chap.  XXII. 

equity.  ^  In  New  York,  the  courts  vacate  judgments  on 
motion,  if  shown  to  be  obtained  by  reason  of  the  ignorance 
or  negligence  of  an  attorney,  and  say  that  they  will  not 
allow  a  client  to  be  ruined,  because  he  has  retained  "an 
imcompetent,  negligent,  or  unworthy  attorney. "2 

§  509.  Rights  Acquired  by  Third  Persons. — Whatever 
is  said  in-this  chapter,  in  relation  to  vacating,  enjoining,  or 
otherwise  interfering  in  equity  with  a  judgment  or  de- 
cree, must,  in  the  absence  of  any  statement  to  the  con- 
trary, be  understood  as  applying  to  a  contest  between  the 
parties  to  the  original  judgment  or  decree,  or  to  persons 
acquiring  under  them  with  notice  of  all  the  facts.  The  prin- 
ciples applicable  after  third  persons  have,  for  valuable  con- 
siderations and  without  notice  of  any  defects,  obtained  rights 
under  one  of  the  parties,  have  not  been  discussed  as  fre- 
quently as  could  be  expected  and  cannot  be  considered  as 
finally  settled.  In  relation  to  judgments  obtained  by  some 
fraudulent  device,  in  a  case  where  the  parties  are  properly 
in  court,  third  persons  are  not  to  be  affected  in  their  inter- 
ests based  upon  the  judgment  unless  they  can  be  shown  to 
have  acquired  with  knowledge  of  the  fraud.  But  where  the 
complainant  seeks  to  avoid  the  effect  of  any  judgment  or 
decree,  on  the  ground  that  no  process  was  in  any  manner 
served  upon  him,  and  that  he  had  no  knowledge  or  notice 
of  the  proceedings,  the  question  arises  whether  he  is  obliged 
to  suffer  all  the  consequences  which  would  result  from  a 
regular  judgment,  because  a  third  party  has  made  outlays 
occasioned  by  his  faith  in  the  judgment  or  decree.  Re- 
cently in  California,  proceedings  were  instituted  for  the 
purpose  of  impeaching  a  judgment  for  taxes,  and  annulling 
a  sale  made  thereunder,  on  the  ground  that  the  process  in 
the  tax  suit  was  never  served  on  the  defendant  therein. 
The  Supreme  Court  in  deciding  the  case,  said:  "The  de- 
fendant being  a  purchaser  for  value  at  a  judicial  sale,  with- 
out notice  of  the  extrinsic  facts  which  are  relied  upon  to 
impeach  the  judgment,  cannot  be  affected  thereby.  No 
principle  is  better  settled  than  that  a  purchaser,  at  a  judicial 

1  Quin  V.  Wetherbee,  41  Cal.  2-17.      I      2  Sharp  v.  Mayor  of  New  York,  31 

'  Barb.  578. 
522 


Chap.  XXII.]  EIGHTS  ACQUIRED.  g509 

sale,  without  notice  under  proceedings  regular  upon  their 
face,  and  had  in  a  court  of  competent  jurisdiction,  is  not 
afiected  bj  any  mere  error  of  the  court,  for  which  the  judg- 
ment might  be  reversed   upon  appeal,  nor  for  any  secret 
vice  in   the  judgment,   not  appearing  on  the  face  of  the 
record,  and  which  can  be  made  to  appear  only  by  the  pro- 
duction of  extrinsic  evidence.     He  is  bound  at  his  peril  to 
inquire  whether  it  sufficiently  appears  on  the  face  of  the 
record,  that  the  court  had  jurisdiction  to  render  the  judg- 
ment, and  whether  there  is  a  valid  execution.     But  nothing 
more  is  required  of  him.     Unless  the  plaintiff  in  the  action 
be  also  the  purchaser  at  the  sale,  the  latter  will  not  be 
affected  by  any  mere  error  of  the  court,  even  though  the 
judgment  be  afterwards  reversed  for  such  error;  nor  can 
his  rights  be  impaired  by  any  secret  vice  in  the  proceedings 
resulting  from  fraud  or  other  similar  cause,  of  which  he  had 
no  notice.     As  between  the  parties  to  the  action,  a  judg- 
ment fraudulently  obtained,  will  be  set  aside  and  held  for 
naught  when  the  fraud  is  made  to  appear.     But  there  would 
be  no  security  in  titles  acquired  at  judicial  sales  if  the  rights 
of  a  honajide  purchaser,  without  notice,  could  be  overthrown 
by  subsequent  proof,  that  the  judgment  was  obtained  by 
fraud,  or  that  the  record,  which  showed  a  due  service  on 
the  defendant,  was  in  fact  false.     The  repose  of  titles,  and 
indeed  every  consideration  of  public  policy,  demands  that 
a  purchaser  at  a  judicial  sale,  without  notice,  under  pro- 
ceedings regular  upon  their  face,  and  by  a  court  of  comj^e- 
tent  jurisdiction,  should  be  protected,  as  against  mere  er- 
rors of  the  court,  and  against  secret  vices  in  the  proceed- 
ings, founded  on  fraud,  accident,  or  mistake,  and  which  can 
only  be  made  to  appear  by  the  proof  of  extrinsic  facts  not 
appearing  on  the  face  of  the  record.     No  prudent  person 
would  purchase  at  a  judicial  sale  if  he  incurred  the  hazard 
of  losing  his  money  in  case  it  should  be  made  to  appear 
that  the  judgment  was  obtained  by  perjury  or  other  fraud- 
ulent practices,  or  that  the  record  on  which  he  relied  as 
proving   a   service   on   the   defendant  was,   in   fact,   false. 
These  propositions  are  too  familiar  to  require  the  citation 
of  authorities  in  their  support,  and  we  have  been  referred 
to  none  which  app&ars  to  contravene  them,  unless  it  be  two 

523 


§509  LAW  OF  JUDGMENTS.  [Chap.  XXII. 

cases  decided  by  the  Supremo  Court  of  Iowa."  The  court 
proceeds  further  to  declare  in  general  terms  that,  as  against 
a  purchase  under  execution  sale,  the  same  rules  and  pre- 
sumptions apply  in  an  action  in  equity,  to  avoid  the  sale,  as 
are  applicable  in  a  collateral  attack  upon  the  judgment.^ 
The  decisions  referred  to  in  Iowa,  declare  that  a  judgment 
procured  by  the  appearance  of  an  unauthorized  attorney 
will  be  vacated  in  equity,  though  such  vacation  destroys 
the  rights  acquired  by  a  bona  fide  purchaser  without  notice. 
The  court  in  California  not  being  called  upon  to  decide  the 
precise  question  involved  in  these  cases,  speaks  of  their 
doctrine  as  follows  :  "If  an  unauthorized  appearance  by  an 
attorney  for  a  non-resident  defendant,  who  was  not  served 
with  process,  can  afterward  be  shown  to  invalidate  the  title 
of  a  bona  fide  purchaser,  without  notice,  at  the  execution 
sale,  it  stands,  so  far  as  I  am  aware,  as  a  solitary  exception 
to  the  general  rule,  and  the  doctrine  ought  not  to  be  further 
extended."  It  is  here  intimated  that  ho  who  buys  when  the 
defendant  is  ostensibly  in  court,  attending  to  his  interests, 
by  the  means  with  which  those  interests  are  commonly  pro- 
tected, may  possibly  take  his  title  accompanied  with  perils, 
which  cannot  attach  themselves  Avhere  the  defendant  is  not 
in  any  manner  represented  in  the  progress  of  the  cause.  If 
a  distinction  can  bo  made  in  the  two  classes  of  cases,  it 
should  bo  in  favor  of  the  party  who  purchased  under  the 
judgment  in  the  case  where  an  attorney  has  appeared ;  for 
if  any  court  has  the  power  to  take  and  exercise  jurisdiction 
over  a  defendant  in  no  manner  served  with  process,  and  in 
any  event  to  bind  him  by  its  judgment,  then  it  surely  can- 
not be  that  the  appearance  of  an  attorney  presuming  to  act 
for  such  defendant,  can  divest  the  court  of  its  jurisdic- 
tion. But  while  the  decisions  made,  where  an  unauthorized 
attorney  has  appeared,  and  that  made  in  California,  in  the 
absence  of  service,  where  no  attorney  had  appeared,  may 
not  be  necessarily  inconsistent  that  they  cannot  both  stand. 
It  is  obvious  that  the  reasoning  on  which  the  decisions  in 
Iowa  were  based,  would,  if  applied  to  the  case  arising  in 

1  Tteeve  v.  Keuneay,  43  Cal.  649;  affirmed  in  Stokes  v.  Geddes,  April  18,. 
1873  ;  5  P.  L.  E.  133. 
524 


Chap.  XXII.]  INNOCENT   PURCHASER.  §§509-511 

California,  have  led  to  a  different  result  from  that  attained 
in  the  case  of  Reeve  v.  Kennedy.  The  Iowa  cases  adopt  the 
reasoning  of  the  Supreme  Court  of  the  United  States  in 
Shelton  v.  Tiffin  (6  How.  U.  S.  163).  In  that  case  the  effect 
of  a  judgment  against  one  L.  P.  Perry,  was  drawn  in  ques- 
tion. An  attorney,  inadvertently,  and  without  any  fraud  or 
collusion,  appeared  for  L.  P.  Perry.  A  regular  trial  was 
had,  there  being  other  defendants  who  were  properly  in 
court,  and  a  judgment  was  obtained  for  $7,560.  Execution 
having  issued,  the  property  of  L.  P.  Perry  was  sold  to  Sam- 
uel Anderson.  The  court  said  :  "In  this  case,  L.  P.  Perry 
was  not  amenable  to  the  jurisdiction  of  the  court,  and  did 
no  act  to  authorize  the  judgment.  He  cannot,  therefore, 
be  affected  hy  it,  or  by  any  proceedings  under  it.  The  judg- 
ment being  void  for  want  of  jurisdiction  in  the  court,  no 
j-ight  passed  to  Samuel  Anderson  under  the  marshal's  sale." 
After  quoting  this  case,  the  court  in  Iowa  said  :  "It  cannot 
validate  a  judgment  void  for  want  of  jurisdiction,  that  there 
has  been  a  sale  under  it."^ 

§510.  Innocent  Purchaser.  —  A.,  holder  of  a  senior 
mortgage,  was  summoned  as  a  defendant  in  an  action  to 
foreclose  a  junior  mortgage.  The  summons  served  stated 
that  a  foreclosure  would  be  taken,  subject  to  A.'s  lien.  He 
was  therefore  advised  that  he  need  not  appear.  A  decree 
w^as  taken  without  saving  his  rights,  and  a  sale  was  made 
under  such  decree.  A.,  hearing,  three  years  afterward,  of 
the  decree  and  sale,  endeavored  to  have  them  set  aside. 
The  court  held  that  the  decree  being  regular  on  its  face, 
protected  the  innocent  purchaser,  and  that  A.'s  only  remedy 
was  against  the  plaintiff'  and  his  solicitor." 

§  511.     ReUef   after    Denial    of   Motion    at    Law.  — 

Courts  of  law,  in  some  instances,  may  determine,  on  mo- 
tion, applications  of  which  courts  of  equity  would  also  take 
cognizance,  if  the  matter  were  brought  before  them  in  an 
independent  action.     In  such  cases,  the  summary  disposi- 


1  Harsliey  v.  Blackmarr,  20  Iowa, 
161  and  183-1 ;  Bryant  v.  "Williams, 
21  Iowa,  329. 


2  Hamlin  v.  McCahill,  Clarke  Ch. 
249. 

525 


§§511-512  LAW  OF  JUDGMENTS.  [Cliap.  XXII. 

tiou  of  a  question  upon  motion,  resulting  in  a  denial  of  the 
relief  claimed,  docs  not  preclude  the  party  from  obtaining 
the  aid  of  chancery.  Thus,  though  the  right  to  set  off  one 
judgment  against  another  is  strictly  an  equitable  right,  yet 
courts  of  law  may  recognize  and  enforce  it;  but  a  refusal  b}- 
a  court  of  law  to  allow  the  set-off,  after  full  consideration  of 
all  the  rights  and  equities,  is  no  bar  to  a  bill  in  equity  for 
an  injunction  and  a  set-off.'  Upon  the  same  principle,  the 
denial  of  a  motion  to  open  a  judgment,  does  not  preclude  a 
court  of  equity  from  subsequently  granting  the  relief  denied 
at  law.  The  decision  of  such  motion  is  not  such  a  res  acljii- 
d'lcata  as  precludes  equity  from  re-examining  the  question. 
The  opening  of  a  judgment  in  a  court  of  law  is  always  ex 
gratia,  while  restraining  the  plaintiff  from  proceeding  on 
the  judgment  is,  in  equity,  a  matter  of  right.  The  facili- 
ties for  investigating  the  issues  presented  iu  the  motion  are 
usually  better  in  equity  than  at  law.^ 

§512.  Parties  "who  may  obtain  Relief. — No  person 
will  be  permitted  to  proceed  in  equity  against  a  judgment 
or  decree  to  which  he  was  not  a  party,  and  which  did  not, 
at  its  rendition,  affect  any  of  his  rights.  If  the  parties  to 
an  adjudication  are  satisfied  with  it,  no  outside  persons  will 
be  permitted  to  intermeddle  with  it,  at  law  or  in  equity.^ 
The  grantee  of  land  charged  with  a  judgment  lien  at  the 
date  of  the  grant,  cannot  have  the  judgment  set  aside  for 
fraud,*  nor  can  he,  in  any  manner,  inquire  into  the  consid- 
eration of  the  judgment  for  the  purpose  of  impeaching  or 
avoiding  it.^  Having  taken  the  land  subject  to  a  lien,  of 
Avhich  the  grantor  made  no  complaint,  the  grantee  must 
abide  by  that  lien,  unless  he  can  show  that  it  was  procured 
by  fraud  and  designed  and  calculated  to  prejudice  him  as  a 
subsequent  purchaser.*'  If  an  applicant  seek  to  open  a 
judgment  on  the  ground  that  it  is  in  fraud  of  his  rights  as  a 
creditor  of  the  judgment  debtor,  he  will  not  be  listened  to 


^  Simpson  v.  Hart,  1-i  Johns.  G3. 

^  Simpson  v.  Hart,  14  Johns.  G3, 
and  Wistur  v.  McManes,  51  Penn.  St. 
318  ;  Truett  v.  Waiuwiight,  4  Gilm. 
418  ;  Contra,  Critchlielcl  v.  Porter,  3 
Hamm.  518. 

526 


^  Mayes  v.  Woodall,  35  Tex.  G87. 
4Marrincr  v.  Smith,  27  Cal.  649. 
5  French  v.  Shotwell,  5  Johns.  Ch- 
554;  same  case,  G  Johns.  235. 
eShufelt  v.  Shufelt,  9  Pai.  137. 


Chap.  XXII.] 


INFANCY. 


§§512-513 


until  lie  has  made  his  own  debt  certain  and  indisputable  by 
a  judgment  against  his  alleged  debtor.' 

§  513.     Infancy. — A  judgment  against  an  infant  is  not 
void.^     The  usual  practice  is  to  insert  a  provision  allowing 
an  infant  a  day  after  he  comes  of  age,  to  show  cause  against 
a  decree  pronounced  against  him.     And,  except  where  the 
practice  has  been  changed  by  introducing  a  modification  of 
the  common  law  in  this  respect,  the  omission  of  this,  clause 
is  an  error  which  will  undoubtedly  be  corrected  on  appeal. 
According  to  some  of  the  authorities,  the  right  to  show 
cause  against  a  decree  is  the  absolute  right  of  every  infant 
defendant;  a  right  which  is  not  taken  away  by  the  omission 
to  provide  for  it  in  the  decree,  and  which  may  be  enforced 
by  bill  of  review  or  by  original  bill,  showing  that,  upon  the 
facts,   the   original   decree   is   improper.^     But  the   better 
opinion  is  that  "  an  infant  defendant  is  as  much  bound  by 
a  decree  in  equity  as  a  person  of  full  age;  therefore,  if  there 
be  an  absolute  decree  made  against  a  defendant  who  is  un- 
der age,  he  will  not  be  permitted  to  dispute  it,  unless  upon 
the  same  grounds  as  an  adul  t  might  have  disputed  it,  such 
as  fraud,  collusion  or  error.  "^     An  absolute  decree  against 
an  infant  is,  at  least,  so  far  binding  on  him,  that  he  can  nei- 
ther by  bill  of  review,  nor  by  an  original  bill,  nor  by  any 
other  proceeding,  impeach  it  so  as  to  prejudice  the  interests 
of  a  bona  fide  purchaser  without  notice.     This  is  equally  true, 
whether  the  judgment  or  decree  is  sought  to  be  set  aside  on 
the  ground  that  there  was  error  in  the  judgment  of  the  court 
in  not  giving  a  day  to  show  cause,  or  error  in  other  respects  in 
the  judgment  rendered ;5  or  whether  the  judgment  or  decree 
was  obtained  by  the  guardian  or  other  representative  of  the 
infant,  for  the  purpose  of  defrauding  him  of  his  estate^ " 


iWintiiugam  v.  Wiutriugam,  20 
Johns,  296;  Wiggins  v.  Armstrong,  2 
Johns.  Ch.  lii;  Angell  i'.  Draper,  1 
Veru.  399;  Shirley  v.  AVatts,  3  Atk. 
200;  Bennet  v.  Musgrave,  2  Ves.  51. 

2 Martin  v.  Weyman,  26  Tex.  460; 
Fulbright  v.  Cannefox,  30  Mis.  425; 
Towuseud  v.  Cox,  45  Mis.  401;  Por- 
ter V.  Kobiuson,  3  A.  K.  M.  254. 

sHarris  v.  Youman,  1  Hoffman,  Ch. 


178;  Kuchenbeiser  v.  Beckert,  41  111. 
173;  Eichmond  v.  Tayleur,  1  P.  Wms. 
734;  Lloyd  v.  Malone,  23  111.  43; 
Wright  V.  Miller,  1  Sanf.  Ch.  103. 

•ii)an.  Ch.  Pr.  205;  Ealston  v. 
Lahee,  8  Iowa,  23. 

5joyce  V.  McAvoy,  31  Cal.  273; 
Benne.tti;.Hamill,2  Scho.&Lef.p.575. 

6  Gwiun  V.  Williams,  30  lud.  374; 
Wright  t'.  Miller,  1  Sanf.  Ch.  103. 

527 


g  ^514-510  LAW  OF  JUDGMENTS.  [Cliap.  XXII. 

g  514.  Where  there  is  no  Injury. — A  proceeding  in  tlio 
courts  of  a  sister  State,  confessedly  illegal,  out  of  wliicli  no 
injurious  consequence  is  flowing,  and  which  no  attempt 
is  made  to  enforce,  cannot  be  made  the  foundation  of  an 
action  in  the  courts  of  this  State  to  have  it  declared  void. 
This  decision  was  made  in  New  York,  upon  an  action 
brought  there  to  annul  a  decree  of  divorce  rendered  in 
Michigan,  without  any  service  of  process  upon  the  husband, 
who  was  a  resident  of  the  former  State.  The  relief  was 
refused  ' '  because  the  matter  can  be  ascertained  to  be  illegal 
by  reference  to  the  books,  as  well  as  by  getting  the  opinion 
of  this  court  upon  it."  ^  In  California,  a  judgment  entered 
by  default  by  a  clerk  in  the  absence  of  authority  will  not 
be  restrained  in  equity,  because  the  court  can,  at  any  time, 
upon  motion,  arrest  the  process  based  upon  such  judg- 
ment. ^ 

§  515.  Time  to  Apply. — In  Illinois,  it  has  been  held 
that  in  those  cases  where  the  service  of  process  is  construc- 
tive, and  the  law  on  that  account  allows  a  defenda^it  a 
specified  time  to  appear  and  have  the  judgment  opened  to 
make  a  defense  on  the  merits,  the  time  for  prosecuting  a 
bill  or  review  or  a  writ  of  error  does  not  run  against  the 
defendant  until  the  judgment  has  been  made  final  in  fact  as 
well  as  in  form,  by  the  lapse  of  the  time  granted  him  by 
statute  in  which  to  apply  to  set  it  aside.  ^ 

^  516.  The  general  rule  that  he  who  seeks  equity  must  do 
equity,  is  applicable  to  all  complainants  seeking  relief  from 
judgments  against  them.  Courts  of  equity  never  interpose 
to  wrest  from  any  party  any  legal  advantage  he  may  have 
gained,  without  requiring  his  adversary  to  do  complete 
justice,  either  by  paying  the  amount  due  or  by  submitting 
to  any  other  order  of  the  court  which  may  be  necessary  to 
adjust  the  rights  of  the  parties  with  each  other,  according 
to  fair  dealing  and  good  conscience.* 

1  Hill  V.  Hill,  28  Barb.  23.  1  Eeeves  v.  Cooper,  1  Beas.   Ch.  223; 

2 Chipman  U.Bowman,  14  Cal.  157;   Baragee    v.    Croukite,   33  lud    192; 


Sanchez  v.  Carriaga,  31  Cal.  170. 
3 Lyon  ',-.  Bobbins,  IG  111.  277. 
<  Creed  u.  Scruggs,  1  Hciskell,  590;  i  inger  v.  Hull,  5  Gill,  60 


Yongo  V.  Sbcpperd,  44  Ala.  315;  Over- 
ton V.    Stevens,   8   Mo.   G22-    Flick- 


Chap.  XXIII.]  CHIEF  DISTINCTION.  §517 


CHAPTEE  XXIII. 

JUDGMENTS  OF  COUKTS  NOT  OF  EECOKD. 

g  517.  Chief  Distinction. 

§  518.  Whether  Jurisdiction  can  be  shown  aliunde. 

§  519.  Docket  Recitals. 

§  520.  Justice's  Court. 

§  521.  Service  of  Process. 

§  522.  Facts  to  authorize  Process. 

§  523.  Cases  where  Court  may  decide  on  its  own  Jurisdiction. 

§  524.  As  Conclusive  as  other  Judgments. 

§  525.  Want  of  Jurisdiction  makes  Void. 

§  526.  Adjournment  without  day. 

§  527.  No  Presumptious  of  Jurisdiction. 

S  528.  Judgments  against  Persons  under  common  name. 

9  529.  Ministerial  Officers  acting  under  Void  Judgments. 

§  530.  Judicial  officers  acting  without  authority. 

§  531.  Tribimals  acting  Judicially. 

§  517.  Chief  Distinction. — The  chief .  distinction  be- 
tween judgments  pronounced  by  courts  of  record  and  those 
pronounced  by  courts  not  of  record,  arises  from  the  pre- 
sumption of  law  that  the  former  courts  act  within  their  juris- 
diction, while,  so  far  as  jurisdiction  i"*  concerned,  no  pre- 
sumption is  indulged  in  favor  of  the  latter.  Whoever  relies 
upon  the  judgment  of  a  court  of  special  jurisdiction  must 
establish  every  fact  necessary  to  confer  jurisdiction  upon 
the  court.  The  proceedings  of  all  courts  not  of  record, 
must  be  shown  to  be  within  the  powers  granted  to  them  by 
law,  or  such  proceedings  will  be  entirely  disregarded.  The 
acts  of  these  two  classes  of  courts  have  been  properly 
likened  to  the  acts  of  general  agents  and  the  acts  of  special 
agents.  The  former  are  to  be  regarded  as  valid  in  all  cases 
to  the  extent  that  all  persons  relying  upon  them  need  sliow^ 
nothing  beyond  the  general  grant  of  authority;  while  the 
latter,  to  be  binding,  must  first  be  shown  to  fall  within  the 
limits  of  a  special  or  restricted  grant.'     There  is  a  further 


^  Clark  V.  Holmes,  1  Doug.  Mich. 
390;  Sears  v.  Terry,  26  Conn.  273; 
Shuflelt  V.  Buckley,  45  111.  223;  Stan- 
ton 1'.  Styles,  5  Esc.  583;  Gray  v.  Mc- 
Neal,    12    Geo.   424;    Harrington  v. 

(34)  529 


People,  G  Barb.  607;  Taylor  v.  Brush- 
cup,  27  Md,  219;  O.  &  M.  R.  E.  Co. 
u.  Shultz,  31  Ind.  150;  Thompson  i'. 
Multnomah  Co.,  2  Oregon,  34. 


^^517-518 


LAW   OF  JUDGMENTS.  [Chap.  XXIII. 


distiuction  in  regard  to  the  proceedings  of  these  two  classes 
of  courts,  arising  from  the  fact  that  courts  of  special  juris- 
diction have  no  record,  and  therefore  no  unimpeachable 
memorial  of  their  transactions.  Any  statement  in  relation 
to  jurisdiction  found  among  the  papers,  minutes,  or  other 
written  matter  kept  by  these  courts,  seems  to  be  but  prima 
facie  evidence  ;  in  opposition  to  which  it  may  be  shown,  by 
any  satisfactory  means  of  proof,  that  the  authority  of  the 
court  did  not  extend  over  the  matter  in  controversy,  nor 
over  the  parties  to  the  suit.^ 

§  518.  Evidence  to  Support. — The  necessity  of  affirma- 
tively establishing  the  jurisdiction  of  courts  of  record,  by 
evidence  aliunde,  can  never  arise  while  the  authority  of  those 
courts  is  always  presumed.  No  doubt  a  case  of  actual  juris- 
diction might  exist  in  an  inferior  court  at  the  rendition  of 
the  judgment,  without  the  evidence  necessary  to  make  the 
jurisdiction  apparent  in  collateral  proceedings  being  pre- 
served among  the  records.  Yet  general  expressions  used 
in  many  cases  indicate  that,  when  the  judgment  of  a  court 
not  of  record  is  offered  in  evidence,  for  any  purpose,  it  must 
appear,  from  inspection  of  the  records,  that  jurisdiction  ex- 
isted." These  expressions  were  mainly,  if  not  exclusively, 
made  in  reference  to  a  state  of  facts  out  of  which  the  ques- 
tion of  supporting  judgments  of  inferior  courts  by  means  of 
aliunde  proof  of  jurisdictional  facts,  could  not  arise.  In 
California,  the  question  has  been  directly  involved  and  de- 
cided, in  a  decision  in  which  the  rule  that  jurisdiction  must 
be  apparent  on  the  face  of  the  proceedings  was  limited  to 
those  jurisdictional  facts  which  the  law  directs  the  court  to 
set  forth  on  its  records.  Any  other  fact  essential  to  juris- 
diction may  be  established  by  evidence  aliunde;^  and  this 


1  Rowley  v.  Howard,  23  Cal.  401  ; 
Pardon  v.  Dwire,  23  111.  574  ;  San- 
born V.  Fellows,  2  Foster,  489  ;  Cor- 
win  V.  Merritt.  3  Barb.  343;  People  v. 
Cassels,  5  Hill,  1(34;  Salladay  u.  Bain- 
hill,  29  Iowa,  535;  Barber  v.  Winslow, 
12  Wend.  101 ;  Jenks  v.  Stebbins,  11 
Johns.  224  ;  Sears  v.  Terry,  2G  Conn. 
273  ;  Cark  v.  Holmes,  J  Doug.  40O  ; 
see,  however,  Lightsey  v.  Harris,  20 

530 


Ala.  409;  First  National  Bank  v.  Bal- 
com,  35  Conn.  351. 

2  Simons  v.  De  Bare,  4  Bjsw.  554; 
Ford  V.  Babcock,  1  Deuio,  153;  Frees 
V.  Ford,  2  Seld.  176;  Walker  r.  Mese- 
ly,  5  Denio,  102;  Lowe  v.  Alexander, 
15  Cal.  29G;  Root  v.  McFerrin,  37 
Miss.  17. 

3  JoUey  V.  Foltz,  34  Cal.  321. 


Chap.  XXIII.]  SERVICE  OF  PKOCESS. 


§g518-521 


view  is  sustained   bj  tlie  most  recent   decisions  in   New 
York.' 

§  519.  Recital  ia  Docket. — The  recital  in  the  docket  of 
a  justice  of  the  peace,  that  "summons  was  returned  duly 
served,"  is  a  mere  conclusion  of  law,  adding  nothing  to  the 
effect  of  the  officer's  return.  That  return  is  as  much  a  part 
of  the  record  as  the  docket.  If  it  fail  to  show  service,  a 
recital  in  the  docket  based  upon  it  cannot  give  validity  to 
the  judgment.'^ 

^  520.  Justices'  Courts. — It  seems  to  have  been  pre- 
sumed at  common  law,  that  justices  of  the  peace  proceeded 
lawfully  and  had  acquired  jurisdiction  over  the  defendant, 
until  the  contrary  appeared.  ^  In  some  of  the  United  States, 
the  records  of  justices  are  considered  as  entitled  to  the  same 
absolute  verity  as  the  records  of  other  courts;  and  no 
evidence  is  admitted  to  impeach  them  collaterally,  though 
offered  for  the  purpose  of  showing  want  of  jurisdiction  over 
the  defendant.^  In  Massachusetts^  "  the  rule  which  makes 
the  judgment  of  a  court  of  record  binding  upon  the  parties, 
until  reversed  by  proper  proceedings  therefor,  although 
jurisdiction  of  the  person  was  not  properly  obtained,  is 
applicable  as  well  to  a  justice  of  the  peace  as  to  one  of  a 
court  of  general  jurisdiction."  ^ 

§  521.  Service  of  Process. — To  confer  jurisdiction  on 
a  court  not  of  record,  the  process  must  be-^properly  served. 
A  judgment  founded  on  a  service  of  process,  made  by  a 
constable  having  no  authority  to  serve  it,  is  void.  ^  So  is  a 
judgment  founded  upon  a  return  signed  "  E.  C,  Deputy 
Sheriff,"  as  the  law  does  not  recognize  the  act  of  a  deputy 
sheriff,  except  for  and  in  the  name  of  his  principal.  '^  Where 


1  Van  Duzen  v.  Swett,  51  N.  Y.  381, 

^  Lowe  V.  Alexancjer,  15  Cal.  296. 

SRexu.  Venables,  1  Str.  G30;  Eex 
V.  Cleg,  1  Str.  475;  Rex  v.  Peckham, 
Carth.  40G;Rex  v.  Clayton,  3 East. 58. 

^Eilliugs  V.  Eu",sell,  23  Penu.  S. 
191;  Tarbox  v.  Hays,  6  Watts.  398; 
Fan-  V.  Ladd,  37  Vt.  158;  Ligbtsey  v. 
Harris,  20  Ala.  411.   A  judgment  ren- 


dered by  a  justice  of  the  peace  is  not 
void  because  be  failed  to  file  the  com- 
plaint. Barber  v.  Kennedy,  18  Minn. 
216. 

5  Hendrich  v,  Whittemore,  105 
Mass.  28. 

^  Reynolds  v.  Orvis,  7  Cow.  269; 
Gallatian  v.  Cunningham,  8  Cow.  361. 

T  Rowley  v.  Howard,  23  Cal.  401. 

531 


M 


Or, 


?g 521-523  LAW  OF  JUDGMENTS.  [Cliap.   XXIII. 

the  rotarn  of  tho  constable  shows  that  the  summons  has 
been  served  in  the  township  in  which  the  suit  was  com- 
menced, and  tho  justice  acting  on  such  return  enters  judg- 
ment, such  judgment  cannot  bo  collaterally  avoided  by 
showing  that  the  defendant  resided  in  another  township;' 
but  where  the  record  fails  to  establish  that  the  defendant 
was  sued  or  served  with  summons  in  the  proper  township, 
a  judgment  by  default  is  void.-  In  Texas,  it  has  been  de- 
cided that  the  issuing  and  serving  of  the  writ  give  a  jus- 
tice of  the  peace  jurisdiction;  and  that,  therefore,  a  judg- 
ment is  not  void,  though  prematurely  rendered  before  the 
time  mentioned  in  the  citation.^  But,  a  judgment  by 
default  where  the  summons  issued  by  a  justice  required 
less  time  for  the  defendant  to  appear  than  was  provided  by 
statute,  has  been  adjudged  to  be  void.* 

g  522.  Facts  Authorizing  Process.  —  Sometimes,  cer- 
tain facts  are  required  to  be  proved  to  a  court  of  limited 
jurisdiction  as  a  ground  for  the  issuing  of  process.  In 
such  case  the  tribunal  must  necessarily  judge  for  itself  upon 
the  sufficiency  of  the  proof  offered.  If  there  be  any  evi- 
dence, though  slight  and  inconsiderable,  having  a  legal 
tendency  to  prove  the  necessary  facts,  the  process  will  be 
held  valid  until  the  action  of  the  court  in  issuing  it  be  set 
aside  by  some  direct  proceeding.  But  if  there  be  an  entire 
absence  of  proof,  the  process  is  void.  In  the  one  case 
there  is  a  mere  error  of  judgment,  in  the  other  a  want  of 
every  matter  upon  which  the  court  is  authorized  to  act.'' 

§  523.  Whenever  the  jurisdiction  of  a  court  not  of 
record  depends  on  a  fact  v/hich  the  court  is  required  to 
ascertain  and  settle  by  its  decision,  such  decision,  if  the 
court  has  jurisdiction  of  the  parties,  is  conclusive  and  not 
subject  to  any  collateral  attack."     Thus,  where  the  Surro- 

Vfinderhayden  v.  Young,  11  Johns. 
150;  Evansville  R.  R.  Co.  v.  Evans- 
ville,  15  Ind.  421;  Wanzer  v.  How- 
land,  10  Wis.  16;  Angel  v.  Eobbins, 
4  K.  I.  493;  Dyckmau  v.  Mayor  of 
N.  Y.,  1  Seld.  434;  Agry  v.  Betts,  12 
Mai.  415;  Low  v.  Dore,  32  Mai.  27; 
Waterhouse  v.  Cousins,  40  Mai.  333. 


1  Fagg  V.  Clements,  IG  Cal.  389. 

^  Lowe  U.Alexander,  15  Cal.  296; 
Malletfc  V.  Uncle  Sam  Co.,  1  Nev.  188. 

3 McNeil  V.  Hallmark,  28  Tex.  157. 

*  Johnson  v.  Baker,  38  III.  98. 

5  Morrow  v.  Weed,  4  Iowa,  77. 

6Brittain  v.  Kinnaird,  1  Brod.  & 
Eing.  432;  Betts  v.  Bagley,  12  Pick. 
572;  Martin  v.  Mott,  12  Wheat.   19; 

532 


Chap.  XXIII.]    CONCLUSIVE  as  judgments. 


§§523-524 


gate  in  New  York,  was  empowered  to  appoint  guardians  for 
minors  residing  in  the  county  wherein  the  court  was  held; 
and  a  petition  was  presented,  stating  that  A.  B.  was  such  a 
minor,  and  without  any  guardian,  and  upon  the  hearing  of  such 
petition  evidence  was  given  in  relation  to  the  residence  of 
the  minor,  and  an  appointment  thereupon  made,  it  was  sub- 
sequently considered  that  the  jurisdictional  fact  of  residence 
was  thereby  established,  so  that  the  appointment  could  not 
be  collaterally  assailed  by  proving  that  A.  B.  did  not  reside 
in  the  county/ 

§  524.  As  Conclusive  as  other  Judgments. — When  a 
court  of  special  jurisdiction,  having  authority  to  decide  the 
matter  in  controversy,  acquires  jurisdiction  over  the  parties 
to  the  suit,  its  judgment  is  final  and  conclusive,  unless 
reversed  by  some  appellate  court.  Such  judgment  cannot  be 
ovei'hauled  or  controverted  in  any  original  suit,  at  law  or  in 
equity.  Its  merits  can  nowhere  be  collaterally  investigated. 
No  error,  however  palpable,  will  vitiate  it.'  "An  inferior 
court  having  acquired  jurisdiction,  the  same  intendments 
will  be  made  in  its  favor  as  in  the  case  of  superior  courts."* 
Courts  not  of  record  are  like  special  agents,  we  "must  see 
their  authority"  before  regarding  their  decisions  as  lawful ; 
but,  seeing  it,  we  are  to  respect  it.  Their  authority'-  is  not 
the  less  certain  because  specified  and  confined.'  "It  is 
well  settled,  that  when  the  jurisdiction  of  a  court  of  limited 
and  special  authority  appears  upon  the  face  of  its  proceed- 
ings, its  action  cannot  be  collaterally  attacked  for  mere  er- 
ror or  irregularity.  The  jurisdiction  appearing,  the  same 
presumption  of  law  arises,  that  it  was  rightly  exercised,  as 
prevails  with  reference  to  the  action  of  a  court  of  superior 
and  general  authority.^ 


1  Lewis  V.  Button,  8  How.  P.  103. 

2  Bell  V.  Eaymond,  18-Coun.  100; 
Shoemaker  v.  Brown,  10  Kans.  383  ; 
Eelyea  v.  Ramsey,  2  Wend.  602 ; 
Eoosevelt  v  Kellogg,  20  Johns.  208  ; 
Bernal  v.  Lynch,  36  Cal.  135;  Gees  v. 
Shannon,  2  Watts,  71;  Dakinu.  Hud- 
son, 6  Cow.  221  ;  Sheldin  v.  Wright, 
1  Seld.  497;  Mitchell  v.  Hawley,  i 


Denio,  416  ;  Woodruff  v.  Cook,  2  Ed. 
Ch.  262  ;  Eeed  v.  Spoonable,  66  N. 
C.  415. 

^  Thompson  v.  Multnomah  County, 
2  Oregon,  34. 

*  McKenziei).  Eamsay,l  Bailey,457. 

i  Comstock  V.  Crawfoi-d,  3  Wall. 
396  ;  LoTig  v.  Burnett,  13  Iowa,  28 ; 
15  Iowa,  213. 

533 


§g525-529  LAW  OF  jltdgments.         [Chap.  XXIII. 

§  525.  Want  of  Jurisdiction  makes  Void.  —  A  limited 
tribunal,  takirg  upon  it  the  exercise  of  jurisdiction  not 
belonging  to  it,  its  decision  is  a  nullity,  from  which  there 
need  not  be  an  appeal.^  Judgment  of  a  justice  in  a  sum 
exceeding  his  jurisdiction,  is  void.'^ 

g  526.  Adjournment  without  Day. — A  justice  who  ad- 
journs a  cause  without  specifying  the  hour  of  the  day  nor 
the  place  to  which  it  is  adjourned,  thereby  loses  jurisdic- 
tion over  the  parties,  and  a  judgment  subsequently  rendered 
by  him  is  invalid.^ 

§527.  No  Presumptions  of  Jurisdiction. — As  nothing 
can  be  presumed  in  favor  of  the  jurisdiction  of  a  justice  of 
the  peace,  the  matters  requisite  to  authorize  service  of  sum- 
mons by  publication,  must  affirmatively  appear.  If  the 
statute  provides  that  before  ordering  summons  to  be  pub- 
lished, it  must  appear  that  plaintiff  has  a  good  cause  of 
action;  and  the  only  showing  on  the  subject  is  an  affidavit 
stating  in  general  terms  "  that  a  good  cause  of  action  exists," 
this  is  insufficient,  and  the  judgment  procured  thereby  is  a 
nullity.^ 

§  528.  When  two  or  more  persons  are  associated  in  busi- 
ness, in  California,  under  a  common  name,  the  statute 
authorizes  suit  to  be  brought  against  them  in  such  name. 
Under  this  statute  complaint  was  filed  against  the  "Inde- 
pendent Company."  The  summons  was  issued  against  the 
Independent  Tunnel  Company,  and  was  returned  served  on 
"E,"  a  member  of  the  Independent  Company.  Judgment 
entered  against  the  Independent  Tunnel  Company  was  held 
to  be  void  on  the  ground  that  the  record  failed  to  show  any 
suit  or  service  on  the  last  named  company.^ 

§  529.  Officers  Acting  under  Void  Judgment.— Ques- 
tions in  regard  to  the  responsibility  of  officers  for  acts  done 
by  virtue  of  process  issued  upon  void  judgments,  arise  more 


lAtt'y  Gen'l  v.  Lord  Hotham,  1 
Turn.  &  K.  219;  Briscoe ■«.  Stephens, 
2  Bing.  213. 

2  Jones  u.  Jones,  3  Dev.  3G0;  Hinds 


3  Crandall  v.  Bacon,  20  Wis.  G39. 

4 Little  V.  Currie,  5  Nev.  90;  Forbes 
r.  Hyde,  31  Cal.  353;  Bicketson  v. 
Richardson,  26  Cal.  153. 


V.  Willis,  13  S.  &  R.  213.  '     ^  King  v.  Randall,  33  Cal.  318. 


534 


Chap.  XXIII.]  JUDICIAL   OFFICEKS. 


§g529-530. 


frequently  out  of  the  proceedings  of  courts  not  of  record 
than  out  of  proceedings  in  the  higher  courts.  A  void 
judgment  entered  in  one  of  the  inferior  courts  has,  no 
doiibt,  sometimes  been  treated  as  incapable  of  being  a 
justification  for  any  act  done  under  it,  either  by  the  jjarties 
or  by  any  officer  of  the  court.'  But  the  general  rule  seems 
now  to  be  almost  universally  acknowledged  and  enforced, 
that  an  ofiicer,  acting  under  process,  regular  and  valid  on 
its  face,  and  issued  by  a  court  which  might  lawfully  exer- 
cise jurisdiction  over  the  subject  matter  of  the  action,  is 
protected  although  the  court  had  no  jurisdiction  over  the 
defendant,  unless  the  officer  had  notice  of  that  fact.^  It  is 
said  that  when  want  of  jurisdiction  arises  from  a  fact  of 
public  notoriety  which  may  legally  be  presumed  to  be  in 
the  ofiicer's  knowledge,  he  is  not  protected  by  his  process.^ 
Some  cases  in  New  York  deny  the  responsibility  of  ofiicers 
although  they  knew  of  the  facts,  from  which  it  appeared  that 
the  court  had  no  jurisdiction  of  the  person  of  the  defendant,* 
or  of  the  subject  matter  of  the  controversy.  ^  But  no  doubt 
an  officer  acting  under  process  issued  in  a  case  of  which  the 
court  could  not,  in  any  circumstances,  have  jurisdiction,  is 
liable  as  a  trespasser.^ 


§ 


530.     Judicial  Officers  Acting  without  Authority.— 

While  judicial  officers,  whether  of  superior  or  of  inferior 
courts  are  not  responsible  for  any  errors  of  judgment  made 


^  Yates  V.  Lansing,  9  Johns.  424; 
Terry  v.  Huntington,  Hardr.  4S0; 
Case  of  the  Marstialsea,  10  Colie,  G8; 
Wise  V.  Withers,  3  Crunch.  331;  Mills 
r.  Martin,  I'J  Johns.  35;  Woodward  u. 
Paine,  15  Johns.  493. 

2 Harmon  v.  Gould,  1  Wright  Ohio, 
709;  Taylor  v.  Alexander,  6  Hamm. 
145;  Coon  u.  Congdou,  12  Wend.  49G; 
Sheldon  V.  Van  Buskirk,  2  Corns.  473; 
Dominic  v.  Ecker,  3  Barb.  19;  Noble 
V.  Holmes,  5  Hill.  194;  Harget  v. 
Blackshear,  Taylor  N.  C.  107;  Da- 
mon V.  Bryant.  2  Pick.  411;  Clay  v. 
Caperton,  1  Monr.  10;  Cornell  v. 
Barnes,  7  Hill.  35;  McLean  v.  Cook, 


23  Wis.  364;  Dynes  v.  Hoover,  20 
How.  U.  S.  G5;  McDonald  v.  Wilkie, 
13  111.  22;  Shaw  v.  Davis,  55  Barb, 
389;  Whipple  v.  Kent,  2  Gray,  410; 
Churchill  v.  Churchill,  12  Verm.  661; 
Miller  v.  Grice,  1  Bich.  147;  State  v. 
Crow,  6  Eug.  642;  Higdon  v.  Conway, 
12  Mo.  205;  Camp  v.  Mosely,  2 
Florida,  171;  Campbell  v.  Webb,  11 
Md.  471. 

^  Batcheldor  u.  Currier,  45  N.  H. 
4G0;  Parker  v.  Wallrod,  16  Wend. 
518. 

4Webber  v.  Gay,  24  Wend.  483. 

5  People  V.  Warren,  5  Hill.  440. 

GHoward  v.  Clark,  43  Mo.  344. 


^^530-531 


LAW  OF  JUDGMENTS.  [Chap.  XXIII. 


bj  them  M'hile  acting  within  their  jurisdiction, ^  they  are, 
when  assuming  to  act  beyond  the  scope  of  their  authority 
responsible  as  trespassers. "  If  a  complaint  states  facts 
sufficient  to  give  jurisdiction  to  a  judicial  officer,  with  whom 
it  is  filed,  he  is  not  responsible  for  any  acts  done  under  it, 
though  it  afterwards  appears  that  the  complaint  is  untrue, 
and  that  the  jurisdictional  averments  therein  are  false.  ^  A 
justice  of  the  peace  who  enters  judgment  and  issues  execu- 
tion against  a  defendant  not  served  with  summons,  there 
being  no  return  showing  such  service,  and  no  appearance 
by  defendant,  is  liable  as  a  tresjpasser  for  acts  done  under 
the  execution.* 

§  531.  We  have  shown  in  this  chapter  that  the  decisions 
of  courts  not  of  record  are  conclusive  upon  all  questions 
which  such  courts  have  jurisdiction  to  decide ;5  and  that  the 
judges  of  such  courts,  like  those  of  higher  judicial  tribunals, 
mtiy  decide  upon  all  matters  properly  before  them,  without 
the  danger  of  being  made  responsible  for  any  errors  of  judg- 
ment.^    A  large  number  of  persons  and  of  tribunals,  not 


1  Miller  v.  Seare,  2  Bl.  Eep.  1141; 
Yates  i;.  Lansing,  9  Johns.  424;  Phelps 
V.  Sill,  1  Day,  315;  Lining  u.  Bentham, 
2  Bay.  1;  Bushell's  case,  1  Mod.  119; 
Hamond  v.  Howell,  1  Mod.  184;  2 
Mod.  218;  Downing  v.  Herrick,  47 
Me.  4G2;  Dodswell  v.  Impey,  1  B.  & 
C.  1C3;  Ela  v.  Smith,  5  Gray,  135; 
Burnham  v.  Steven,  33  N.  H.  247- 
Moor  V.  Ames,  3  Cai.  170;  Butler  v. 
Potter,  17  Johns.  145;  Friend  v. 
Hamill,  34  Md.  298;  McClure  v.  Gulf 
K.  K  Co.,  9  Kans.  382. 

sBlood  V.  Sayre,   17  Verm.    609; 


Houlden  v.  Smith,  14  Ad.  &  El.  N.S. 
84J ;  Pease  v.  Clayton,  1  Best  &Smith, 
658;  Eevill  v.  Pettit,  3  Met.  Ky.  314; 
Cahoon  v.  Speed,  2  Jones,  133; 
Knowles  v .  Davis,  2  Allen,  61 ;  Piper 
V.  Pearson,  'A  Gray,  120;  Wise  v. 
Withers,  3  Cranch.  331. 

3  Lowther  v.  Earl  of  Bander,  8  East. 
113. 

4lnos  V.  Winspear,  18  Cal.  397; 
Tobin  V.  Addison,  2  Strob.  3. 

6  See  ^§523-4. 

G  See  §  530. 


Note. — The  following  officers  and 
tribunals  have  been  held  to  act  judi- 
cially in  certain  cases,  and  their  de- 
cisions treated  as  possessing  the  same 
effect  as  the  judgments  of  courts  not 
of  record,  and,  therefore,  as  not  bfeing 
liable  to  any  collateral  attack,  except 
for  want  of  jurisdiction:  Board  of  Pi- 
lot Commissioners  (Down  v.  Lent,  6 

53G 


Cal.  94) ;  Board  of  Superviisors  deter- 
mining necessity  for  new  official  bond 
(People  V.  Supervisors,  10  Cal.  344); 
Benevolent  and  other  associations 
determining  questions  involving  the 
rights  of  their  members  (Black  and 
Whitesmith's  Society  v.  Vandyke,  2 
Wheat.  309  ;  Anacosta  Tribe  v.  Mur- 
back,  13  Md.  91  ;  Commonwealth  v. 


Chap.  XXIII.]       DECISIONS  of  courts. 


§531 


ordinarily  spoken  of  as  "judges,"  nor  as  "courts,"  are 
nevertheless  authorized  to  investigate  and  determine  cer- 
tain questions.  Their  authority  in  this  respect  is  judicial  ; 
and  their  determinations  are  conclusive,  until  set  aside  by 
some  competent  authority.  They  can  not  be  made  liable 
for  errors  in  deciding.  Their  jurisdiction,  like  that  of  other 
courts  not  of  record,  must  always  be  affirmatively  shown  to 
impart  validity  to  their  decisions.  As  a  general  rule,  when- 
ever any  person  or  persons  have  authority  to  hear  and  de- 
termine any  question,  their  determination  is,  in  effect,  a 
judgment  having  all  the  incidents  and  properties  attached 
to  a  similar  judgment  pronounced  in  any  regularly  created 
court  of  limited  jurisdiction  acting  within  the  bounds  of  its 
authority. 


Pike  Ben.  So.,  8  Watts'  1  S.  247)  ; 
Commissioners  appointed  to  decide 
■whether  an  execution  should  run 
against  the  body  of  the  defendant 
(Howe  V.  Newbegin,  34  Me.  15)  ; 
Commissioners  of  County  locating 
public  highway  (State  v.  Augusta,  4G 
Me.  127)  ;  College  Orders  (Rex  v. 
Grundon,  1  Cowp.  315; ;  Church  Tri- 
bunals (Church  V.  Withnell,  3  Pai. 
296;  Gable  v.  Miller,  10  Pai.  G27;  Ger- 
man Eef .  Church  v.  Seitber,  3  Barr, 
291 ;  Shannon  v.  Frost,  3  B.  Monr. 
258;  Forbes  v.  Eden,  1  Scotch  &  Dir. 
AiDp.  618;  Chase  v.  Cheney,  Jan.  Term 
1871  of  S.  C.  of  Illinois);  Inspectors 
of  Elections  passing  on  qiialifications 
of  person  offering  to  vote  (Gordan  v. 
Farrar,  2  Doug.  Mich.  411  ;  Brevard 
V.  Hoffman,  18  Md.  479)  ;  Mayor  of 
city  deciding  whether  to  call  out  the 


military  to  supjpress  a  riot  (Ela  v. 
Smith,  5  Gray,  135) ;  Mihtary  Courts 
(Dynes  v.  Hoover,  20  How.  U.  S.  65; 
Hefferman  v.  Porter,  6  Cold.  391;  In 
re  Kobt.  Bogart,  U.  S.  C  C,  Vol.  5 
P.  L.  R.  125j ;  Register  and  Receiver 
of  Land  Office  (McConnell  v.  Will- 
cox,  1  Scam.  344) ;  Stewart  of  Court 
Baron  (Holroyd  v.  Breare,  2  B.  & 
Aid.  473) ;  Vicar  General  of  a  Bishop 
in  excommunicating  (Ackerly  v.  Par- 
kinson, 3  M.  &  S.  411).  But  in  all 
cases  jurisdiction  of  the  defendant 
must  be  obtained  to  bind  him  by  the 
adjudication  (Commonwealth  v.  Ger- 
man Society,  15  Penn.  S.  251;  Delacy 
V.  Neuse  Navigation  Co.,  1  Hawks, 
274;  Wash.  Ben.  So.  v.  Bacher,  20 
Penn.  S.  425  ;  Innes  v.  W^ylie,  1  Car. 
&  K.  257;  Queen  v.  Saddler's  Co.,  10 
H.  L.  Cas.  404). 

537 


gg532-533  LAW  OF  judgments.  [Cliap.  XX.IY. 


CHAPTER   XXIV. 

OF  JUDGMENTS  BY  DEFAULT. 

I  532    Effect. 

§  533.  Entry  by  Clerk  without  Authority. 

§  534.  Erroneously  Entered  by  Clerk. 

§  535.  Disqualification  of  Judge  does  not  Disqualify  Clerk. 

§  530.  Entry  by  the  Court. 

§  537.  On  .\pi)eal,  no  Presumptions  of  Jurisdiction. 

§  538.  Whether  an  Appeal  Lies.  • 

§  539.  On  Good  and  Bad  Counts. 

§  540.  Errors  Reviewed  on  Appeal. 

§  541.  Opening. 

g  542.  Terms  Imposed. 

§  532.  Effect  of.— The  effect  of  a  valid  judgment  by 
default,  remaining  unvacated  and  unreversed,  is  generally 
conceded  to  be  the  same  as  thougli  it  had  resulted  from  the 
trial  of  issues  formed  by  appropriate  pleadings  on  the  part 
both  of  the  plaintiff  and  of  the  defendant.  The  decisions 
sustaining  this  statement,  as  well  as  the  few  tending  to  con- 
trovert or  modify  it,  are  cited  under  various  heads  in  this 
book,  and,  therefore,  need  not  be  reproduced  in  this  x^lace.' 
The  vacating  or  enjoining  of  a  judgment  by  default,  is  gov- 
erned by  the  same  rules  and  must  be  supported  by  the 
same  cause  which  would  be  sufficient  to  warrant  the  vacat- 
ing or  enjoining  of  any  other  judgment.  ^ 

§  533.  ]Eatry  by  Clerk  without  Authority.  —  Judg- 
ments may  be  entered  after  default,  either  by  the  clerk  of 
the  court,  acting  ministerially,  or  by  the  court  acting  judici- 
ally. "The  clerk  derives  all  his  powers  from  the  statute, 
and  as  they  are  special,  no  intendments  are  to  be  made  in 
support  of  his  act,  but  in  each  case  it  must  appear  that 
what  he  did  was  within  the  authority  conferred  on  him  by 
the  statute;  and  whether  the  act  done  by  him  be  considered 
as  purely  ministerial  or  of  a  mixed  nature,  partaking  of  ele- 
ments both  ministerial  and  judicial  is  of  no  practical 
importance.     The  question  is,  had  he  authority  to  enter  the 

1  See  ^  330  and  331.  I  Faulkner   v.  Campbell,   Morris,    148; 

sSobier  v.  Merril,  3  W.  &  M.  179;  j  Mason  v.  Eichards,  3  Gilm.  25. 

5-J8 


Chap.  XXIV.}  ENTRY  BY  THE  COURT.  §§533-536 

defendant's  default  and  thereupon  judgment  final  against 
him  as  the  case  stood  at  that  time?"^  If  this  question  is 
answered  in  the  negative,  or,  in  other  words,  if  the  clerk 
had  no  authority  to  enter  the  default,  or  if,  having  authority 
to  enter  the  default,  he  had  no  authority  to  enter  judgment 
thereon,  then  any  judgment  entered  by  him,  without  the 
direction  of  the  court,  is  void.  ^ 

§  534.  Erroneously  Entered  by  Clerk. — But  it  may 
happen  that,  though  the  authority  of  the  clerk  to  act  is  con- 
ceded, he  proceeds  to  exercise  this  authority  erroneously. 
The  question  then  arises:  "Is  the  judgment  void  so  as  to 
be  an  absolute  nullity  incapable  of  enforcement,  or  is  it 
simply  an  erroneous  judgment,  which  may  be  enforced  until 
modified  on  motion  made  in  the  proper  manner  at  the  proper 
time,  or  on  appeal  from  the  judgment?  In  such  case,  we 
do  not  think  the  judgment  would  be  absolutely  void,  in  con- 
sequence of  an  error  of  the  clerk  in  determining  the  amount. 
It  would  be  an  error  committed  in  the  performance  of  an 
act  within  his  jurisdiction  to  perform,  which  could  be  cor- 
rected on  motion  made  in  time,  or  on  appeal,  but  which 
would  not  vitiate  the  judgment  if  not  corrected.  There  is 
no  want  of  jurisdiction  over  the  subject  matter,  but  only  an 
error  in  its  exercise.  Until  modified  or  reversed,  the  judg- 
ment was  valid.  "^ 

§  535.  Disqualification  of  Judge. — The  entry  of  a  de- 
fault by  the  clerk,  being  a  ministerial  act,  "the  disqualifica- 
tion of  the  judge  or  his  court  to  try  or  render  judgment 
in  the  case,  does  not  disqualify  the  clerk  from  performing 
this  ministerial  act,"* 

§  536.  Entry  by  the  Court.  —The  entry  of  judgment 
upon  default,  by  the  court,  acting  by  its  clerk,  being  the 
exercise  of  judicial  authority,  is  liable  to  be  questioned 
collaterally,  if,  from  the  record,  want  of  jurisdiction  over 


1  Providence  Tool  Co.  v.  Prader,  32 
Cal.  634. 

'^  Stearns  v.  Aguirre.  7  Cal.  443 ; 
Cbipman  v.  Bowman,  14  Cal.  157; 
Kelly  V.  Van  Austin,  17  Cal.  564;  Glid- 


den  V.   Packard,  28  Cal.  649;  Wilson 
V.  Cleveland,  30  Cal.  192. 

3  Bond  V.  Pacbeco,  30  Cal.  530. 

4 People  t».DeCarrillo,  35  Cal.  37. 

539 


§^530-538  LAW  OF  JUDGMENTS.  [Chap.  XXIV. 

the  subject  matter  of  the  action,  or  over  the  person  of  the 
defendant,  is  apparent;  to  be  reversed  upon  appeal  for  any 
errors  in  the  exercise  of  established  jurisdiction;  and  to  be 
vacated  in  the  court  wherein  it  was  entered,  for  irregularities 
in  the  proceedings,  or  in  the  absence  of  such  irregularities, 
in  order  to  permit  of  the  production  of  meritorious  de- 
fenses. The  law  in  regard  to  collateral  attacks  founded  upon 
jurisdictional  defects,  has  already  been  considered  in  the 
chapter  upon  inquiries  in  regard  to  jurisdiction.  We  shall, 
therefore,  confine  this  chapter  to  a  brief  statement  of  the 
matters  sufficient  to  occasion  the  reversal  of  a  judgment  by 
default,  when  made  the  subject  of  review  in  an  appellate 
tribunal ;  and  of  the  facts  warranting  a  vacation  of  the 
judgment  in  the  court  wherein  it  was  entered. 

§  537.  Jurisdiction  not  Presumed  on  Appeal. — On  ap- 
peal, presumptions  in  regard  to  the  regular  acquisition  of 
jurisdiction  over  the  defendant  in  the  court  below,  do  not 
prevail.  If  the  record  fails  to  show  that  jurisdiction  has 
been  obtained,  the  judgment  will  be  reversed.'  Thus,  if 
the  return  on  the  summons  be  signed  by  A.  B.,  Under  Sher- 
iff, it  is  a  nullity,  because  the  court  cannot  recognize  the  act 
of  a  deputy  or  under-sheriff,  except  when  done  in  the  name 
and  as  the  act  of  his  principal.  For  this  reason  the  judg- 
ment founded  upon  such  return  will  be  reversed.-  The 
same  action  will  be  taken  by  an  appellate  court,  where, 
though  service  is  shown,  the  summons  is  radicall}'  defec- 
tive. ^  A  judgment  by  default  against  two  defendants,  only 
one  of  whom  has  been  summoned,  is  erroneous,  and  will  be 
reversed  as  to  both  when  the  cause  of  action  is  joint.* 

g  538,  Whether  Appeal  Lies. — "When  process  is  served, 
it  is  incumbent  on  the  defendant  to  appear  and  to  disclose 
his  defense,  but  a  difference  of  opinion  exists  in  regard  to 
the  necessity  of  his  appearing  and  objecting  by  demurrer 
to  a  complaint  which  is  so  radically  defective  as  to  disclose 
no  cause  of  action  against  him.     On  one  hand,  it  is  insisted 


1  Schloss  V.  White,  16  Cal.  65. 

2  Joyce  V,  Joyce,  5  Cal.  449. 

•■i  Stats    V.   Woodlief,    2    Cal.   241; 

540 


Porter  v.  Hermann,  8  Cal.  625. 

4Winslow  V.  Lambard,  57  Me.  356. 


Chap.  XXIV.]         WHETHER  APPEAL  LIES.  §538 

that  if  the  defendant  neglects  to  adopt  his  remedy  of  de- 
murring to  the  comphxint  because  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  that  he  cannot  sus- 
tain an  appeal.'  On  the  other  hand,  and  especially  in 
California,  judgments  by  default  are  held  to  be  proper  sub- 
jects of  appeal,  and  are  reversed  when  the  complaints  on 
which  they  are  based  do  not  state  matters  sufficient  to  con- 
stitute a  cause  of  action.  The  default,  it  is  reasonably 
suggested,  does  not  admit  any  fact  which  the  plaintiff  has 
not  thought  proper  to  allege.'  The  rule  adopted  by  the  Su- 
preme Court  of  California,  and  the  reason  for  its  adoption, 
were  thus  stated  by  Justice  Sanderson  : 

"Nor  is  there  any  force  in  the  idea  that  a  distinction  is 
to  be  made  between  cases  which  were  once  denominated 
cases  at  law,  and  cases  which  were  once  called  cases  in 
equity ;  and  that  on  appeal  from  judgments  by  default,  this 
court  will  review  errors  in  the  latter  cases,  and  not  in  the 
former.  There  is  matter  in  some  of  the  cases  cited  by  re- 
spondents which  gives  color  to  such  an  idea ;  but  we  say  of 
them,  as  we  have  said  of  the  others,  there-is  no  foundation 
for  the  distinction. 

"Nor  is  there  any  force  in  the  suggestion  that  this  court 
will  exercise  original  instead  of  appellate  jurisdiction  if  it 
entertains  the  points  made  in  this  appeal.  It  is  true  that, 
as  a  matter  of  fact,  the  court  below  has  never  passed  upon 
the  sufficiency  of  the  complaint ;  yet  it  is  equally  true  that, 
as  a  matter  of  law,  it  has.  Though  entered  by  the  clerk 
without  the  direction  of  the  judge,  it  is  as  much  the  judg- 
ment of  the  court  as  if  it  had  been  announced  from  the 
bench,  and  the  defendants  are  as  much  entitled  to  the  opin- 
ion of  this  court,  upon  the  sufficiency  of  the  complaint,  as 
they  would  have  been  had  they  appeared  and  demurred. 
Questions  of  jurisdiction  and  of  the  sufficiency  of  the  com- 
plaint, upon  the  point  whether  the  facts  stated  constituted 


1  Jones  V.  Kip,    1   Code  R.    119; 

Adams  u  Oaks,  20  Johns.  282;  Pope 
r.Dinsmore,  8  Abb.  Pr.  429;  Dorr  v. 
Birge,  8  Barb.  351;  Golden  v.  Knick- 
erbocker, 2  Cow.  31;  Dean  v.  Abel,  2 
Sch.  &  Lef.  712. 


2  Abbe  V.  Marr,  14  Cal.  210  ;  Jen- 
kins V.  Frink,  30  Cal.  48G  ;  Choynski 
V.  Cohen,  39  Cal.  501 ;  Childress  v. 
Mann  &  Co.,  33  Ala.  206. 


541 


§^538-539  LAW  OF  judgments.         [Chap.  XXIY. 

a  cause  of  action,  are  never  waived  in  any  case,  and  may  be 
made  for  the  first  time  in  this  court. 

"The  idea  which  finds  countenance  in  some  of  the  cases 
cited  by  the  respondents,  that  at  all  events  this  court  will 
deal  more  liberally  with  judgments  by  default  than  with 
others,  and  will  pass  over  errors  for  which  it  would  reverse 
a  judgment  rendered  upon  a  trial,  we  here  take  occasion  to 
say,  is  without  foundation.  It  is  true  we  will  not  reverse  a 
judgment  by  default  for  mere  technical  defects  in  the  com- 
plaint which  fall  short  of  an  entire  want  of  something  which 
is  material  to  the  plaintiff's  right  to  recover.  So  the  cases 
referred  to  declare,  and  in  this  respect  they  are  sound.  The 
error  in  those  cases  was  in  giving  countenance  to  the  impli- 
cation that  the  court  would  do  so  in  any  case  by  not  declar- 
ing the  rule  to  be  universal.  On  the  question  of  reversal, 
this  court  can  make  no  distinction  between  judgments  by 
default  and  judgments  upon  issue  joined  and  tried,  for  the 
statute  makes  none.  It  will  reverse  the  former  where  it 
would  the  latter."  ^ 

g  539.  On  Good  and  Bad  Counts. — A  difference  of  opin- 
ion exists  in  regard  to  judgments  upon  default  based  upon 
complaints  containing  several  counts,  some  of  which  are 
good  and  others  defective.  In  California,  it  is  held  that 
the  default  "confesses  all  the  issuable  facts  of  the  several 
causes  of  action  counted  upon,"  and  that  "the  fact,  that 
by  reason  of  one  of  them  having  been  imperfectly  stated, 
no  judgment  could  be  rendered  on  that  count,  does  not 
affect  the  right  of  plaintiff  to  take  judgment  on  those  which 
are  rightly  stated,"  and  therefore  that  the  judgment  by  de- 
fault will  not  be  reversed.  -  But  in  Massachusetts  an  oppo- 
site conclusion  is  sustained.  The  court,  considering  this 
question  in  that  State,  said  :  "The  damages  after  a  default 
are  general,  and  without  looking  into  the  papers  filed,  to 
see  how  the  damages  were  in  fact  assessed,  there  is  no  legal 
ground  to  presume  that  they  were  not  assessed  on  this 
count.  The  rule  is  well  settled  in  case  of  a  verdict,  and 
general  damages,  when  one  count  is  bad  in  substance,  that 

IHallock  V.  Jaudin,  34  Cal.l  C7.       I      sHunt  v.  City  of  San  Francisco,  11 

I  Cal.  250. 
5^2 


Chap.  XXiy.]  OPENING.  §g539-541 

the  judgment  must  be  reversed,  except  whore  it  can  be 
amended,  by  the  certificate  of  the  judge,  so  as  to  show  that 
the  damages  were  assessed  on  the  good  counts  alone.  The 
same  reasons  apply  with  even  more  force  in  case  of  general 
damages  on  a  default."^ 

§  540.  Errors  on  Appeal. — "There  may  be  error  in 
a  judgment  by  default,  as  well  as  in  a  judgment  rendered 
upon  issue  joined  in  the  pleadings  and  tried  by  a  jury;  and 
in  the  former  as  well  as  in  the  latter  case,  the  error  may  be 
corrected  on  appeal."-  This  error  may  consist  in  rendering 
judgment  where  there  is  an  entire  want  of  jurisdiction  over 
the  defendant,  or  where  there  is  no  sufficient  statement  of 
a  cause  of  action  against  him.  In  both  of  these  cases,  as 
we  have  seen,  the  appellate  court  will  exercise  its  super- 
visory powers.  But  its  authority  is  not  confined  to  the  cor- 
rection of  these  extreme  and  radical  errors.  It  will  inter- 
pose to  correct  errors  and  irregularities  in  the  proceedings, 
and  though  the  proceedings  be  regular,  will  correct  errors 
of  the  court  or  of  its  clerk  entering  into  the  judgment  to  the 
prejudice  of  the  appellant.  It  will  reverse  a  judgment  by 
default  entered  before  the  expiration  of  the  time  allowed  for 
the  defendant  to  answer;^  or  founded  upon  a  summons  radi- 
cally defective,^  and  will  so  modify  any  judgment  by  default 
as  to  free  it  from  error,  and  to  make  it  such  a  judgment  as, 
in  the  opinion  of  the  appellate  court,  ought  to  have  been 
rendered  upon  the  facts  confessed  by  the  default. 

^  541.  Opening. — The  courts  possess  and  exercise  a  very 
large  discretion  in  vacating  judgments  by  default,  for  the 
purpose  of  permitting  a  defense  to  be  made  on  the  merits. 
No  rule  can  be  laid  down  on  this  subject  which  would  be 
applicable  in  all  the  different  States.  In  Missouri,  the  rule 
is,  "that  a  meritorious  defense  and  a  reasonable  degree  of 
diligence  in  making  it,  are  all  that  it  is  necessary  to  establish, 
in  order  to  justify  the  setting  aside  of  a  default."^     In  de- 


iDryden  v.  Dryden,   9  Pick.  540; 
Hemmenway  v.  Hickes,  4  Pick.  496. 
2  Stevens  v.  Ross,  1  Cal.  94. 
sBurt  V.  Scranton,  1  Cal.  416. 
4 Porter  u.  Hermann,  8  Cal.  619. 
6  Gage  V.  Rogersj,  20  Cal.  91 ;  Raun 


V.  Reynolds,  11  Cal.  14;  Lamping  & 
Co.  V.  Hyatt,  27  Cal.  99;  Lattimer  v. 
Ryan,  20  Cal.  633;  Wallace  v.  Eld- 
ridge,  27  Cal.  495;  Harding  v.  Cow- 
ing, 28  Cal.  212. 

cAdams  v.  Hickman,  43  Mo.  1G3. 

543 


gg5J:l-542 


LAW   OF   JUDGMENTS.  [Chap.  XXIV 


ciding  upon  tlio  question  of  diligence,  the  action  of  the 
court  will  be  reviewed  only  in  extreme  cases,  involving  an 
abuse  of  the  discretion  vested  in  court. ^ 

§  542.  Imposition  of  Terms. — It  is  a  rule  almost  uni- 
versally acknowledged  and  applied,  that  a  default  will  not 
be  opened  without  imposing  such  terms  as  forbid  that  any 
adt^antage  be  taken  of  mere  technical  errors.  A  defendant 
in  default  has  no  right  to  a  hearing  except  upon  matters 
"which  touch  the  honesty  and  justice  of  the  case."^  But 
the  rule  has  been  denied,  or  at  least  materially  modified,  in 
New  York.  Thus,  in  that  State  a  default  will  be  opened 
without  imposing  the  condition  that  the  defendant  shall  not 
plead  the  statute  of  limitations,  unless  it  be  shown  that  such 
plea  will  be  more  difiicult  to  controvert  than  before  the 
default  was  taken. ^  In  a  case  Avhere  the  court  opened  a 
default  to  allow  the  defendant  to  plead  that  the  note  sued 
upon  was  given  for  a  gambling  debt,  the  following  forcible 
and  apparently  unanswerable  reasons  were  given  for  its 
decision:  "There  should  be  no  selection  or  choice  by  the 
courts  as  to  what  law  should  be  enforced,  or  what  should  be 
evaded  or  nullified;  what  should  be  favored;  what  treated 
with  disfavor.  The  principle  and  policy  of  this  favor  and 
disfavor  are  wrong.  If  it  is  hard  to  allow  such  a  defense, 
the  law  is  to  blame  in  providing  the  defense.  The  courts 
should  not  undertake  to  say  that  certain  defenses  provided 
by  law  are  hard  and  unconscionable,  and  therefore  under- 
take to  legislate  against  them."* 


iWoodwarclv.  Backus,  20Cal.  137; 
Bailey  v.  Taaffe,  29  Cal.  422;  Wooster 
V.  Woodhull,  1  Johns.  Ch.  539;  Fra- 
zier  V.  Bishop,  29  Mo.  447;  Ewing  v. 
Peck,  17  Ala.  339;  Palmer  v.  Hutch- 
ins,  1  Cow.  42.  See  chapters.6  and  7 
of  this  book. 

sBaily  v.  Clayton,  20  Penn.  S.  295; 
King  V.  Merchants'  Exchange  Co.,  2 
Sanf.  697;  Gay  v.  Gay,  10  Pai.  374; 

544 


Bard  v.  Fort,  3  Barb.  Ch.  G32;  see 
Ante,  %  108  and  102. 

sDouglas  V.  Douglas,  3  Ed.  Ch. 
390;  Gourlay  v.  Hutton,  10  Wend. 
595. 

4  Bank  of  Kinderhook  v.  Gifford, 
40  Barb.  G59. 

Note. — For  various  matters  in  rela- 
tion to  opening  and  vacating  judg- 
ments by  default,  see  chapters  G  and 
7  on  Vacating  Judgments. 


Cliap.   XXY.]        WHAT  STATUTE  APPLIES  TO.  gg543-544 


CHAPTER   XXV. 

JUDGMENTS  ON  CONFESSION  WITHOUT  ACTION. 

§  543.  Statutes  in  Regard  io,  strictly  construed. 

§  544.  What  Judgments  are  -within  the  Statutes. 

§  545.  Who  may  make  the  Confession. 

§  54G.  What  may  be  confessed  for. 

§  547.  Jirrisdiction  of  the  Court. 

§  548.  Consent  of  the  Plaintiff. 

§  549.  General  Eequisites  of  Statement. 

§  550.  Verification  of  Statement. 

§  551.  Signing  Statement. 

§552.  Sufacient  Statements. 

§  553.  Statement  on  Promissory  Note.  . 

§  554.  Statement  for  Goods  Sold. 

§  555.  Statement  for  Money  Lent. 

§  556.  Statement  for  Balance  Due. 

§  557.  When  Void. 

§  558.  Eemedy  of  Defendant  for  correction  of  Errors  in. 

g  543.  Statute  Strictly  Construed.  —  The  statutes  of 
several  of  tlie  States  provide,  that  "a  judgment  by  confes- 
sion, either  for  money  due,  or  to  become  due,  or  to  secure 
any  person  against  contingent  liability  on  behalf  of  the  de- 
fendant, or  both,  in  the  manner  prescribed  by  this  chapter;'" 
and  then  prescribe  that  a  verified  statement  must  be  made 
by  the  party  confessing,  and  filed  with  the  clerk.  The 
authority  thus  given  by  statute  must  be  strictly  pursued. , 

§  544.  What  Statute  Applies  to. — The  question  has 
frequently  arisen,  whether  a  judgment  under  consideration 
was  a  judgment  by  confession,  within  the  provisions  of 
these  statutes,  or  was  authorized  and  sustained  by  law  ex- 
isting independent  of  these  statutes.  It  is  certain  that  the 
statute  does  not  apply  to  any  judgment  confessed  in  an 
action  regularly  commenced  and  in  which  process  is  regu- 
larly issued  and  served;^  and  it  seems  to  be  essential  that 


1  Sec.  374  Cal.  Pr.  Act;  sec.  1132 
Cal.  C.  C.  P.;  sec.  382,  N.  Y.  Code. 

sChapin  v.  Thompson,  20  Cal.  686; 
M.  &  M.  Bank  of  Phila.  r.  St.  John, 
5  Hill,  497 ;  Edgar  v.  Greer,  7  Iowa, 
136. 

(35)  545 


sHoguet  V.  Wallace,  4  Dutch.  524; 
Milli^r  V.  Bank  of  British  Columbia, 
2  Oregon,  291;  Crouse  v.  Derbyshire, 
10  Mich.  479;  Schroeder  r.  Fromme, 
31  Tex.  602. 


gg544-545  LAW  OF  judgments.  [Chap.  XXV. 

the  process  should  be  served,  and  that,  though  action  be 
reguhxrly  instituted,  the  voluntary  appearance  of  the  de- 
fendant and  his  admissions  of  the  facts  stated  in  the  com- 
plaint, will  not  sustain  the  judgment,  in  the  absence  of  the 
statement  prescribed  by  statute.'  But  the  service  here 
spoken  of  is  not  necessarily  a  service  in  the  \jsual  manner. 
The  acceptance  of  service  by  the  defendant  is  equivalent  to 
service  in  the  ordinary  form,  and  takes  the  case  out  of  the 
operation  of  the  statute,  requiring  an  affidavit  as  to  the  just- 
ness of  the  debt.* 

2  545.     Who  may  Make  the  Confession.  —  Upon  the 
general  rule  that  whatever  a  person  may  do  for  himself  he 
may  also  do  by  another,  it  is  affirmed  that  a  valid  confes- 
sion may  be  made  by  an  agent  if  within  his  authority.^     If 
tlie  agent  exceeds  his  authority  by  confessing  for  too  great 
an  amount,  the  judgment  is  void  only  as  to  such  excess.'   But 
a  partner  has  not,  by  his  general  power  to  act  as  agent  for 
the  partnership,  authority  to  confess  a  judgment  against  his 
firm.-''     In  New  York,  it  has  been  held  that  a  public  officer 
liable  to  be  sued  for  services  rendered  for  the  public  at  his 
request  may  confess  judgment  for  the  amount  due.     The 
court  said:   "The  statute  is  broad  enough  to  include  public 
officers,  and  I  am  of  opinion  that  in  every  case  where  a  per- 
son is  liable  to  be  prosecuted  to  judgment,  he  may  lawfully 
confess  a  judgment  for  the  amount  justly  due.     I  can  con- 
ceive no  sound  reasons  of  public  policy,  which  require  the 
public  to  be  burthened  Avith  the  costs  of  litigation  in  every 
case  where  a  claimant  proceeds  to  put  his  claim  into  judg- 
ment."   In  Oregon,  jutlgment  against  a  corporation  may  be 
confessed  by  any  of  its  officers  or  agents  on  whom  a  sum- 
mons against  the  corporation  could  be  lawfully  served.''     A 


iFlanigan  v.  Bruner,  10  Tex.  257. 
sGemia  i;.  Burthen,  20  Tex.  203. 
sPaikcr  u.  Toole,  12  Tex.  86. 

4  Davenport  v.  Wright,  51  Penn.  S. 

29^. 

5  Stoughtenburgh  v.  Yandeuburgh, 
7  How.  Br.  229;  Canal  and  Lead 
Mine  Co.  u.  Walker,  11  L.C.  433;  Chris- 
ty V.  Shei'man,  10  Iowa,  535;  Bank's 

548 


Appeal,  3G  Penn.  S.  458;  Eichardson 
u.  Puller,  2  Oregon,  179;  Elliott  v. 
Holbrook,  33  Ala.  G59;  contra  opin- 
ion, see  Bump  v.  Piercy,  4  N.  Y.  Leg. 
Obs.  423. 

cGere  u.  Supervisors  of  Cayuga,  7 
How.  Pr.  257. 

■J  Miller  o.  Bank  of  British  Colum- 
bia, 2  Oregon,  291. 


Chap.  XXV.]        CONSENT  OF  TLAiNTiFr.  g^545-548 

judgment  by  confession  against  a  husband  and  wife,  is  so 
invalid  as  against  the  latter,  that  she  may  have  it  set  aside. ^ 
But  if  she  elect  to  allow  it  to  remain  and  permit  her  prop- 
erty to  be  sold  under  it,  the  sale  is  effectual  to  transfer  her 
title.  2  A  trustee  cannot  confess  a  judgment  so  as  to  bind 
the  trust  estate.  ^ 

§  546.  What  may  be  Confessed  far.— The  statute  pro- 
vides that  the  confession  may  be  for  money  due  or  to  become 
due.  This,  it  has  been  held,  does  not  authorize  the  entry 
of  judgment  without  action  upon  a  demand  for  damages  aris- 
ing out  of  a  tort.^  Judgment  by  confession  must  be  for  a 
sum  certain.  Where  a  party  confessed  judgment  for  such 
sum  as  should  be  awarded,  before  the  award  was  made,  the 
action  of  the  justice  in  subsequently  entering  judgment  in 
accordance  with  the  confession,  was  reversed.^ 

§547.  Jurisdiction  of  the  Court. — Judgments  by  con- 
fession are  in  no  wise  exempt  from  the  rule  applicable  to 
other  judgments  that,  to  be  valid,  they  must  be  entered  in 
a  court  having  jurisdiction  over  the  subject  matter  of  the 
action.  "Though  no  adjudication  is  in  fact  required,  in 
entering  a  judgment  of  confession  without  action,  yet  it  has 
all  the  qualities,  incidents,  and  attributes  of  other  judg- 
ments ;  and  cannot  be  valid  unless  entered  in  a  court  which 
might  have  lawfully  pronounced  the  same  judgment  in  a 
contested  action."*'  Where  the  law  requires  judgments  to 
be  signed  by  the  judge,  its  provision  extends  to  judgments 
by  confession,  and  renders  them  void  if  not  so  signed.^ 

§  548.  Consent  of  Plaintiff.— A.  judgment  by  confession 
entered  without  the  knowledge  or  consent  of  the  creditor  in 
whose  favor  it  is,  is,  prior  to  the  ratification  by  him,  invalid 
for  all  purposes,  being  neither  operative  as  a  lien,  an  estop- 


1  Watkyias  v.  Abraham,  14  How. 
Pr.  191;  24  N.  Y.  72;  Brittan  v.  Wil- 
der, 6  Hill,  242. 

SEoraback  v.  Stebbins,  33  How  Pr. 
278;  Knickerbocker  v.  Smith,  1(J  Abb. 
Pr.  241;  Palmer  u.  Davis,  28  N.Y.  242. 

3  MaUoryu.  Clark,  20  How  Pr.  215; 


Marks  v.  Eeynokls,  12  Abb.  Pr.  403; 
I-Iuntt  V.  Townseml,  31  Md.  33G. 

*  Boutell  V.  Owens,  2  Sandf.  Goo ; 
Boulette  v.  Owen,  2  Code  E.  40. 

5  Nichols  V.  Hewit,  4  Johns.  E.  423. 

GLanning  v.  Carjjenter,  23  Barb.  402 

TChapinu.  Thompson,  20  Cal.  GSl. 

547 


g §543-550  LAW  OF  JUDGMENTS.  [Chai3.   XXV. 

l^el,  nor  as  a  merger  of  the  demand.  But  if  the  creditor 
afterward  accepts  and  ratifies  it,  it  becomes,  from  the  mo- 
ment of  its  acceptance,  valid ;  and  attended  with  all  the  re- 
sults incident  to  other  valid  judgments.^ 

3  549.     General  Requisites  of  Statement. — The  statute 
provides  for  a  statement  in  writing,  signed  by  the  defendant 
and  verified  by  his  oath,  showing  the  amount  for  which  judg- 
ment may  be  entered,  and  authorizing  its  entry  ;  stating  con- 
cisely the  facts  out  of  which  the  indebtedness  due,  or  to 
become  due,  arose  ;  or,  in  case  the  confession  is  intended  to 
secure  a  contingent  liability,  stating  concisely  the  facts  con- 
stituting the  liability,  and  showing  that  the  sum  confessed 
does  not  exceed  such  liability.  The  object  of  the  statement 
is  to  so  inform  persons  with  whose  interest  the  judgment 
conflicts,  as  to  enable  them  to  ascertain  the  truth  or  falsity 
of  the  claims  on  which  it  is  based.    The  statement  "should 
be  specific  in  sums,   dat(?s,   and  considerations,  to  enable 
other  creditors,  with  reasonable  facility,  to  investigate  its 
<^'-enuineness,  and  protect  themselves  from  fraud.""    But  "  it 
need  not  state  enough  of  the  transaction  to  enable  creditors 
to  judge  without  inqnlnj,  whether  the  matter  is  fair  or  not."^ 
A  statement  need  not  be  more  definite  than  a  complaint  on 
the  same  cause  ot  action.* 

2  550.  Verification  of  Statement. — That  the  defendant 
"believes  the  above  statement  of  confession  is  true,"  has 
been  held  to  be  a  sufficient  verification,  on  the  ground  that 
he  could  be  convicted  of  perjury,  if  the  statement  were  un- 
true. ^  But,  subsequently,  in  the  same  State,  and  by  the 
court  of  last  resort,  a  similar  verification  was  decided 
to  be  insufiicient,  and  the  rule  was  established  that  as  to 
matters  within  the  knowledge  of  the  defendant,  he  must 
make  a  direct  statement,  and  as  to  other  matters,  he  must 
state  his  information,  and  add  that  he  believes  it  to  be 


1  Wilcoxson  u  Burton  and  McCarty,. 
27  Cal.  228. 

2Moody  V.  Townsend,  2  Abb.  Pr. 
375. 

548 


^McDowell  V.  McDaniels,  38  Barb. 
113. 
4Cordieru.  Schloss,  12  Cal.  143. 
5  Delaware  V.  Ensign,  21  Barb.  85. 


Chap.  XXV.]  ON  PEOMISSOEY  NOTES. 


§§550-553 


true.i     "  That  the  facts  stated  iu  the  above  confession  are 
true, "  is  a  good  verification . " 

§  551.  Signing  Statement. — If  the  verification  and  state- 
ment are  on  the  same  page,  and  the  signature  of  the  defend- 
ant is  to  the  former  only,  this  is  a  substantial  compliance 
with  the  requirement  of  the  statute,  that  the  statement 
"must  be  made  and  signed  by  the  defendant."  ^ 

§  552.  Sufficient  Statements. — The  statement  need  not 
aver  in  the  terms  of  the  statute  that  the  amount  "  is  justly 
due,  or  to  become  due."  What  the  statute  requires  is,  that 
the  facts  set  forth  shall  make  it  apparent  that  a  debt  is 
"justly  clue  or  to  become  due."  That  being  done,  an  addi- 
tional averment  in  the  language  of  the  statute  is  surplusage. 
Though  a  just  debt,  once  existing,  may  have  been  released 
or  discharged,  still  the  defendant  is  not  required  to  negative 
all  the  conceivable  possibilities, of  the  case,  and  therefore 
the  statement  need  not  assert  that  the  debt  has  not  been 
paid  nor  otherwise  discharged.* 

§  553.  On  Promissory  Notes.  —  If  the  statement  be 
upon  a  promissory  note,  it  is  sufficient  to  set  forth  its 
amount  and  date,  with  the  consideration  for  which  it  was 
made  and  the  time  when  it  was  made  payable.*  The  words 
"that  amount  being  had  of  the  plaintiff  by  the  defendant," 
have  been  considered  a  sufficient  statement  of  the  consider- 
ation of  a  note;®  and  so  have  the  words  "being  for  money 
paid  by  plaintiff  for  me,  on  the  real  estate  I  now  own  at 
Irving."^  A  statement  showing  the  date  and  amount  of  a 
note  and  the  time  when  due,  and  avering  that  a  specified 
sum  is  justly  due  for  principal  and  interest  to  date,  is  in- 


1  Ingram  v.  Bobbins,  33  N.  Y.  409. 

^  Mosher  v.  Heydiick,  30  How.  P. 
IGl;  45  Barb.  549. 

sPurdy  v.  Upton,  10  How.  Pr.  494; 
Post  V.  Coleman,  9  How.  Pr.  64; 
Mosher  u  Heydrick,  30  How.  P.  161; 
45  Barb.  549. 

•*  Lauuing  v.  Carpenter,  20  N.  Y. 
447. 


5  Clements  v.  Gerow,  1  Keyes,  297 
Kellogg  V.  Cowing,  33  N.  Y.  408 
Lanning  i'.  Carpenter,  20  N.  Y.  447 
affirming  23  Barb.  402;  Kirby  v.  FitZ' 
gerald,  31  N.  Y.  417. 

6  Freligh  v.  Brink,  22  N.  Y.  418. 
^  Acker  v.  Acker,  1  Keyes,  291. 


649 


gg553-551 


LAW   OF  .JUDGMENTS. 


[Chap.  XXY. 


sufllcicnt.'  Tlie  following  statements  on  notes  have  been 
held  insufficient:  "That  we,  A.  H.,  E.  H.  and  J.  H.,  are 
indebted  to  A.  B.  upon  a  note,  of  which  the  following  is  a 
coi3y"  (setting  out  copy);'  that  the  debt  is  justly  due  to 
plaintiffs,  on  a  note  made  on  a  specified  date  by  defendant  to 
plaintiffs  on  a  settlement  made  at  a  certain  time,  for  a  given 
sum,  and  due  one  day  from  date;'  that  the  note  was  made 
(giving  date,  amount  and  time  of  payment),  "for  money 
had  and  received  by  me  of  said  plaintiff",  at  my  request;"^ 
that  the  note  was  given  for  "liabilities  incurred  by  the 
plaintiff'  for  me  by  his  indorsement  of  my  notes,  which  the 
said  plaintiff  is  to  pay  or  has  paid;"'^  that  "said  note  was 
given  in  good  faith  for  a  debt  justly  due  plaintiff  and  is  un- 
paid; and  this  confession  of  judgment  is  given  without 
fraud." 6  When  a  statement  is  upon  a  bond,  its  considera- 
tion is  not  sufficiently  set  forth  by  showing  that  it  was  given 
for  a  promissory  note  made  by  defendant  to  A.,  and  endorsed 
by  A.  to  plaintiff.  The  mere  making  and  endorsing  of  a 
note  is  no  sufficient  consideration  for  a  bond,  unless  such 
making  or  endorsing  was  upon  some  consideration.'  The 
consideration  for  the  making  of  a  note  is  insufficiently  de- 
scribed, by  stating  that  the  note  was  "given  for  goods  sold 
and  delivered,  and  money  had  and  received.  Indeed,  the 
failure  to  state  the  amount  due  severally  for  goods  and  for 
money  itself,  would  be  fatal. "^ 

§  554.  Goods  Sold. — In  New  York,  statements  based  on 
indebtedness  for  goods  sold  and  delivered,  have  frequently 
been  sustained,  though  exceedingly  vague  and  indefinite, 
both  as  to  the  character  and  quantity  of  the  goods,  and  as 
to  the  date  of  their  purchase.     The  authorities  in  that  State 


1  Chappel  V.  Cbappel,  12  N.  Y.  215. 
Bank  of  Kinderhook  v.  Jenison,  15 
How.  Pr.  41;  "Wiuuebrennen;.  Edger- 
tou,  30  Barb.  IHo;  Poud  v.  Daven- 
port, <14  Cal.,  481;  Edgar  v.  Greer,  7 
Iowa,  ]  3G. 

2  BonnoU  v.  Henry,  13  How.  Pr. 
142;  Norris  v.  Denton,  30  Barb.  117; 
Kendall  v.  Hodgkins,  1  Bows.  659; 
Murray  v.  Judson,  9  N.  Y.  73. 

550 


3Dnnham  v.  "Waterman,  17  N.  Y.  9. 

4 Daly  V.  Matthews,  20  How.  Pr. 
2G7. 

sVou  Beck  v.  Shumau,  13HowPr, 
472. 

G  Kennedy  v.  Lowe,  9  Iowa,  580. 

f  Heading  v.  Beading,  4  Zubr.  358. 

8  Cordier  v.  Schloss,  18  Cal.  576. 


Chap.  XXY.]  FOR  MONEY  LENT.  g §554-555 

show  that  it  is  sufficient  to  state  that  the  indebtedness  "has 
arisen  for  goods,  wares  and  merchandise  sohl  and  delivered," 
and  that  such  sale  and  delivery  was  in  a  certain  month,  or 
since  a  certain  day,  or  within  the  last  two  years,  or  in  two 
certain  years. ^     A  statement  that  the  "indebtedness  arose 
on  the  sale  and  conveyance,  by  the  plaintiff  to  the  defend- 
ant, of  his  right,  title  and  interest  in  the  boats,  property 
and  effects  of  "William  Mastin  &  Co.,  in  January,  1854," 
was  regarded  as  insufficient  by  Chief  Justice  Deuio.     But, 
"on  consultation,  however,  it  appeared  that  all  the  other 
judges  had  come  to  the  conclusion  that  it  was  valid,  because 
it  was  thought  to  affirm,  with  reasonable  certainty,  that  the 
amount   for  which   the   judgment  was  confessed   was  the 
agreed  price  to  be  paid  by  the  defendant  for  the  interest  of 
the  plaintiff  in  the  property  of  William  Mastin  &  Co.,  upon 
the  purchase  by  defendant  of  that  interest."^     The  vague- 
ness sanctioned  by  these  decisions  is  not  encouraged  by  ad- 
judications made  in  other  States.     In  W^isconein,  a  state- 
ment showed  that  the  defendants  purchased  of  plaintiffs  "a 
large  quantity  of  goods,  wares  and  merchandise"  of  a  speci- 
fied value,  and  that  a  sum  named  remained  unpaid.     When 
this   statement  came   before  the    Supreme   Court,   it   was 
regarded   as   insufficient.      An   early   case   in   New  York, 
declaring  that  "if  the  consideration  was  for  goods  sold,  the 
specification  ought  to  state  the  kind,  quantity  and  price  of 
the  goods,  and  the  time  of  the  sale,  as  in  a  bill  of  parcels,"^ 
was  approved  as  containing  a  correct  statement  of  the  law 
on  the  subject.*     In  Missouri,  it  is  said  a  statement  ought 
to  show  when  and  what  kind   of  property  was  sold,   the 
aggregate  price,  and  the  payments,  if  any,  so  as  to  afford  a 
clew  to  the  creditor,  if  he  wished  to  investigate  the  matter; 
but  that  the  statement  need  not  be  as  precise  as  a  bill  of 
particulars.^ 

§  555.     For  Money  Lent. — It  is  sufficient  to  state  that 


J  Delaware  v.  Ensign,  21  Barb.  85  ; 
Gandall  v.  Finn,  1  Keyes,  217  ;  Head 
V.  French,  28  N.  Y.  285 ;  Daniels  v. 
Claftin,  15  lo-wa,  152 ;  Clements  v. 
Gerow,  1  Keyes,  297  ;  Nensbaum  v. 
Keim,  24:N.Y.  325. 


-  Thompson  v.  Van  Vechten,  27  N. 
Y.  568,  reversing  5  Abb.  Pr.  458 
sLawlessu.  Hackett,  IG Johns.  149. 
*  Nichols  V.  Kribs,  10  Wis.  76. 
5  Bryan  v.  Miller,  28  Mo.  32. 

551 


§§555-557 


LAW  OF  JUDGMEXTS. 


[Chap.   XXV. 


the  defendant  is  indebted  for  a  specified  sum  of  money  lent, 
giving  the  date  of  the  loaning.'  According  to  several  New 
York  cases,  a  statement  showing  that  money  "was  lent  and 
advanced  at  divers  times  "  after  a  specified  date,  is  not  suffi- 
ciently particular.^  But  the  position  taken  in  these  cases  is 
probably  overthrown  by  a  decision  of  the  highest  court  in 
the  same  State,  in  which  it  was  said  that  the  statement  that 
the  money  "was  lent  by  plaintiff  to  defendant  at  various 
times"  after  a  certain  date,  could  be  supported  within  the 
current  of  the  decisions.^ 

§  556.  For  Balance  Due.— A  statement  that  "this  con- 
fession of  judgment  is  for  and  upon  a  balance  of  account 
against  me  for  goods,  wares  and  merchandise  purchased  by 
me"  of  plaintiffs,  is  defective.  It  does  not  state  when 
the  goods  were  bought,  the  terms,  amount,  quality,  or 
kind  ;  neither  does  it  show  what  payments  have  been 
made,  nor  how  the  balance  was  ascertained.^  For  like 
reasons,  it  is  not  sufficient  to  state  that  a  demand  sued 
upon  "was  given  the  plaintiff  for  the  balance  due  on 
settlement,  "s 

^  557,  When  Void. — Judgments  by  confession  without 
action,  like  other  judgments,  are  rarely  void  in  the  extreme 
sense  of  the  term.  A  judgment  by  confession,  though  un- 
supported by  any  statement,  is  valid  between  the  parties.^ 
A  statement  purporting  to  authorize  the  entry  of  judgment 
against  several,  but  which  is  signed  by  less  than  the  Avhole 
number  of  the  defendants,  cannot  support  a  judgment  against 
those  not  signing ;  but  it  is  generally  regarded  as  sufficient 
to  empower  the  clerk  to  enter  a  valid  judgment  against  the 
signers.''    In  California,  such  a  judgment  is  treated  as  an. 


1  Johnston  v.  McAusland,  9  Abb. 
Pr.  214;  Clements  v.  Gerow,  IKeyes, 
•207;  reversing  30  Barb.  325;  Frost  v. 
Koon,  30  N.  Y.  428. 

2 Davis  V.  Morris,  21  Barb.  152; 
Stebbins  v.  East  Society,  12  How.  Pr. 
410;  Daly  v.  Matthews,  20  How.  Pr. 
267. 

s  Frost  V.  Koon,  30  N.  Y.  428. 
552 


4Miller  v.  Earle,  24  N.  Y.  110. 

6  Bernard  &  Co.  v.  Douglas,  10 
Iowa,  370. 

6 Ex  parte  Fuller,  1  Saw.  C.  C. 
243. 

"J North  V.  Mudge  &  Co.,  13  Iowa, 
49G;  The  York  Bank's  Appeal,  36 
Pa.  S.  458. 


Cliap.  XX Y.]  EEXEDY   OF  DEFENDANT. 


gg557-558. 


entirety ;  and  being  invalid  as  to  one  joint  defendant,  is  in- 
valid as  to  all.'  Defects  in  the  statement  do  not  impair  the 
effect  of  the  judgment  between  the  parties.^  It  cannot,  on 
that  account,  be  collaterally  attacked  ;  but  must  be  respected 
until  set  aside  by  appeal,  or  by  action,  or  upon  motion.^  If 
execution  be  issued,  and  a  sale  made,  the  title  of  the  pur- 
chaser is  not  dependent  on  the  statement's  correctness  in 
fact,  or  perfection  in  form.*  The  insufficiency  of  the  state- 
ment throws  upon  the  plaintiff,  in  any  proceeding  for  the 
purpose  of  setting  aside  the  judgment,  the  burden  of  show- 
ing that  it  is  not  tainted  by  fraud,  and  that  facts  sufficient 
to  authorize  its  entry  in  fact  existed,  though  not  set  forth  in 
the  statement.^  The  plaintiff  may  maintain  an  action  to  set 
aside  a  fraudulent  conveyance,  and  to  subject  the  property 
therein  described  to  the  lien  of  his  judgment;  though,  as 
against  other  creditors,  it  is  supported  by  an  insufficient 
statement.^ 

^  558.  Remedy  of  Defendant. — As  in  the  case  of  judg- 
ments by  default,  a  difference  of  opinion  is  manifest  in  re- 
gard to  the  right  of  the  defendant  to  question  or  correct 
the  errors  of  the  court,  or  of  its  clerk.  On  one  hand,  it  is 
asserted  that  a  confession  of  judgment  admits  the  law  to  be 
against  the  defendant  as  well  as  the  facts,  and  "silences 
all  contests  about  the  law  of  the  case."'  On  the  other 
hand,  "it  has  been  held,  that  although  the  confession  of 
judgment  is  a  waiver  of  former  errors,  it  does  not  prevent 
the  defendant  from  objecting  to  errrors  of  substance,"  as 
"  that  the  statement  required  to  be  filed  in  writing  in  insuffi- 
cient."^   In  New  York,    a  judgment  by  confession  may. 


1  Chapin  v.  Thompson,  20  Cal.  681. 

2  Bryan  u.  Miller,  28  Mo.  32;  Kirby 
V.  Fitzgerald,  31  N.  Y.  417;  Plummer 
V.  Douglas,  14  Iowa,  GO;  Lee  v.  Figg, 
37  Cal.  328  ;  Pond  v.  Davenport,  44 
Cal.  481;  How  v.  Dorscheimer,  31  Mo. 
349. 

3  Sheldon  v.  Stryker,  34  Barb.  116; 
21  How.  P.  329. 

'  Miller  v.  Earle,  24  N.  Y.  110. 


5  Cordier  v.  Schloss,  IS  Cal.  576 ; 
Eichards  v.  McMillan,  6  Cal.  419. 

6  Neusbaum  v.  Keim,  24  N.  Y.  324. 
"t  Bonta  V.  Clay,  1  Litt.  27  ;  Jeffreis 

V.  Morgan,  1  Pike,  169;  Kush  v.  Halc- 
yon, 67N.C.47. 

8  Montgomery  i'.  Barnett,  8  Tex. 
143;  Edgar  v.  Greer,  7  Iowa,  136; 
Kennedy  v.  Lowe*  9  580  Iowa;  Hop- 
kins V.  Howard,  12  Tex.  7. 

553 


g5o8  LAW  OF   JUDGMENTS.  [ChaiD.  XXV. 

after  lapse  of  the  term,  be  set  aside  for  a  defect  in 
the  statement,  on  motion  of  a  junior  judgment  creditor ;' 
or  by  an  action  in  the  nature  of  a  creditor's  bill." 
But  in  California,  the  latter  is  the  exclusive  remedy  re- 


cognized. ^ 


1  Chappolu,  Chappcl,  12  N.  Y.  215; 
Kaer.  Lawser,  18  How.  P.  23;  Bon- 
nellr.  Henry,  13  How.  P.  142;  Ber- 


nard  &  Co.  v.  Douglas,  10  Iowa,  370. 
2 Dunham  u.  Waterman,  17  N.  Y.  9. 
SArrington  v.  Sherry,  5  Cal.  513. 


Cliap.  XXVI. 1      CONSTITUTIONAL  TLOVISIONS.  §559 


CHAPTER  XXVI. 

JUDGMENTS  OF  OTHER  STATES. 

§  539.  Constitution  and  Legislative  Provisions,  in  Kegard  to. 
§  5G0.  Jurisdictional  Inquiries. 

§  5G1.  Cases  Deuj-ing  the  Right  to  Inquire  into  Jurisdittion. 
§  562.  Cases  Showing  Jxirisdintional  Inquiries  always  Permissiblo, 
§  5G3.  Eecitals  in  the  R.^cord. 

§  564.  Jurisdiction  of  State  Courts  Confined  by  State  Lines. 
§  565.  Jurisdiction  Presumed. 
§  5G6    Defendant's  Coming  within  the  State. 
§  5G7.  Constructive  Summoning  of  Non-Residents. 
§  563.  Constructive  Summoning  of  Non-Resident  Corporation. 
§  5G9.  Jurisdiction  once  acquired  may  be  continued  by  Constructive  Service. 
§  570.  Constructive  Service  on  Residents. 
§  571.  By  what  Law  considered. 
§  572.  Juriisdiction  of  Subject  Matter, 
g  573.  Service  by  Attachment.  . 
§  574.  Joint  Debtor  Acts. 
§  575.  Given  same  Effect  as  at  Home. 
§  576.  Defenses  to. 
§  577.  Courts  not  of  Record. 
§  578.  Courts  of  the  United  States. 

§  579.  Decrees  of  Divorce  in  States  to  'which  both  parties  have  removed. 
§  580.  Divorce  obtained  by  going  to  another  State. 
§  581.  Divorces  against  Non-Resident. 
§  582.  Domicile  of  Wife. 

§  58  5.  Constructive  Service  in  Divorce  Suits  not  Effective. 
§  584.  Constructive  Service  in  Divorce  Suits  Effective. 
§  585.  Summary  of  Law  of  Divorce  in  Sister  States. 
§  586.  Decree  on  Constructive  Service  affects  only  Marriage  Status. 
§  587.  Whether  Covu-t  acting  on  Divorce  Caso  is  to   bo  treated  as  of  Special 
Jurisdiction. 

§  559.     Constitutional  and  Legislative  Provisions. — A 

judgment  of  any  of  the  courts  of  any  State  of  the  American 
Union  would,  beyond  the  limits  of  the  State  in  which  it  was 
pronounced,  be  regarded  as  a  foreign  judgment,  were  it  not 
for  the  provisions  of  sec.  1,  art.  4,  of  the  Constitution  of 
the  United  States,  and  of  an  act'of  Congress  passed  May 
26,  1790.  It  was,  for  a  while,  insisted,  by  some  of  the 
State  courts,  that  these  provisions  were  not  designed  to  do 
more  than  secure  the  admission  of  judgments  in  evidence, 
and  to  regulate  the  form  and  manner  in  which  they  should 
be  authenticated;  and  no  greater  effect  was,  for  some  time, 
in  some  parts  of  the  Union,  given  to  a  judgment  or  decree 


§ ^559-5 jO 


LAW  OF  judg:ments.  [Chap,  XXYI, 


pronounjecl  in  anotlicr  State,  tlian  if  it  were  pronounced  by 
a  tribunal  in  some  foreign  country.'  The  Supreme  Court 
of  the  United  States,  in  a  decision  "which,  since  its  promul- 
gation, has  been  adopted  throughout  the  Union,  declared 
that  the  act  gave  to  the  record  of  every  judgment,  when 
duly  authenticated,  and  offered  in  evidence  in  another  State, 
the  same  faith  and  credit  to  which  it  was  entitled  in  the 
State  whence  it  was  taken.  That  if,  in  such  State,  it  had 
the  faith  and  credit  of  evidence  of  the  highest  nature — viz: 
record  evidence — then  it  must  have  the  same  faith  and  credit 
in  every  other  state. ^ 

§  5G0.  Jurisdictional  Inquiries. — The  language  of  the 
Supreme  Court  in  Mills  v.  Duryee,  which,  substantially,  was 
but  a  quotation  from  the  act  of  1790,  that  a  judgment  must, 
in  every  State,  be  given  the  same  faith  and  credit  to  which 
it  is  entitled  where  it  was  rendered,  was  so  comprehensive 
and  distinct,  as  to  seem  to  negative  the  existence  of  any 
exception  to  the  broad  rule  here  laid  down,  and  to  impart 
to  such  a  judgment  in  all  cases,  and  in  all  localities,  the  full 
effect  of  a  domestic  judgment.  Hence,  in  anumber  of  State 
courts,  the  act  of  1790  has  been  strictly  construed,  and  no 
defense  whatever  has  been  entertained  in  an  action  upon 
the  judgment  or  decree  of  a  sister  State,  which  would  have 
been  rejected,  if  offered  in  a  like  action,  brought  in  the 
State  where  the  judgment  was  rendered,  even  though  such 
defense  tendered  an  issue  in  relation  to  the  jurisdiction  of 
the  court  in  the  original  action.  Especially  Avliere  the 
record  contained  clear  and  positive  jurisdictional  recitals, 


1  Hammon  v.  Smith,  1  Brev.  110; 
Lambkin  v.  Nance,  2  Brev.  99 ;  Bart- 
lett  V.  Knight,  1  Mass.  401;  Hitch- 
cock V.  Aickens,  1  Cai.  4G0;  Taj'lor  u. 
Bryden,  8  Johns.  173;  Pawling  v. 
Bird's  Ex.,  13  Johns.  192. 

2  Mills  v.  Duryee,  7  Cranch,  481; 
Hampton  u.McConnell,  3  Wheat.  234; 
McElmoyle  v.  Cohen,  13  Pet.  '312; 
Borden  Tj.  Fitch,  15  Johns.  121;  An- 
drews V.  Montgomery,  19  Johns.  lG2j 
Eandolph  v.  Keiler,  21  Mis.  557  ; 
Evans  v.  Justine,  G  Ohio,  117;  Burns 

556 


V.  Belknap,  22  Verm,  419;  Fullerton 
V.  Horton,  11  Verm.  425;  Hoxie  v. 
Wright,  2  Verm.  269;  Davis  i;.  Con- 
nelly's Ex.,  4B.  Monr.  136;Hensly  v. 
Force,  7  Eng.  75G;  Buchanan  u.  Port, 
5  lu-l.  2G4;  McJilton  v.  Love,  13  111. 
43G;  Sharman  v.  Morton,  31  G6o.  4; 
Butcher  v.  The  Bank,  2  Kan.  70; 
Thompson  v.  Emmert,  15  111.  415; 
Lawrence  v.  Jarvis,  32  111.  304;  Duvall 
V.  Fearson,  IS  Md.  502;  Pritchcll  u. 
Clark,  3  Harrington,  241. 


Chap.  XXYI.]      INQUIRING  INTO  JURISDICTION.  §g5G0-5Gl 

has  the  defendant  been  denied  the  right  to  controvert  those 
recitals,  unless  they  would  be  j)roper  subjects  of  contro- 
versy in  similar  proceedings  in  the  jurisdiction  in  which 
they  were  made.' 

^  561.  Cases  Denying  the  Right  to  Inquire  into  Juris- 
diction.— In  some  States  the  broad  ground  is  maintained  that 
in  all  cases,  if  to  escape  the  judgment  where  itwas  rendered, 
the  party  must  show  want  of  jurisdiction  on  the  face  of  the 
record  ;  he  cannot  escape  it  by  any  other  means  in  any  other 
State.-  Now,  the  act  of  Congress  already  mentioned,  after 
providing  the  mode  of  authentication,  declares  that  "the 
said  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them,  in 
every  court  within  the  United  States,  as  they  have  by  law 
or  usage  in  the  courts  of  the  State  from  whence  the  said 
records  are,  or  shall  be  taken."  In  some  of  the  States,  a 
record,  silent  on  the  subject  of  jurisdiction,  is,  when  col- 
laterally assailed,  supported  by  incontrovertible  jurisdic- 
tional presumptions.  In  other  States,  while  less  effect  is 
given  to  mere  presumptions  of  jurisdiction,  record  declara- 
tions and  recitals  upon  this  subject  are  regarded  as  of  that 
high  "  and  uncontrollable  verity,  which  admits  of  no  plea 
or  proof  to  the  contrary."  Whenever  a  judgment  of  either 
of  these  States  is  made  the  basis  of  an  action,  or  employed 
for  any  other  legitimate  object,  in  another  State,  it,  accord- 
ing to  the  act  of  1790,  should  have  such  faith  and  credit 
given  to  it  as  by  law  or  usage  would  be  accorded  to  it, 
under  like  circumstances,  in  the  State  whence  it  is  taken. 
In  the  act  there  is  no  more  authority  for  disputing  its  direct 
or   implied  jurisdictional  adjudications  than   there   is  for 


1  Hensley  v.  Force  &  Co. ,  7  Eng. 
75G;  Bimeler  v.  Lawson,  4  Scam. 
53G;  Westcott  v.  Brown,  13  Ind.  83; 
La^^Tence  v.  Jarvis,  32  111.  309;  Wcst- 
erwelt  v.  Lewis,  2  McL.  511;  Speucer 
V.  Brockway,  1  Ohio,  359;  Thompson 
V.  Emmert,  i  McL.  96;  Lapham  u. 
Briggs,  27  Vt.  2C>;  Lincoln  v.  Tower, 
2  McL.  473;  Roberts  v.  Caldwell,  5 
Dana,  Ky.  512;  Jacquette  v.  Hugunon, 
2  McL.  129;  May  u.  Jameson,  G  Eng. 


368;  Wilcox  V.  Kassich,  2  Mich.  165; 
Prickett  v.  Clark,  5  Harrington,  63, 
and  4  Harr.  280;  Warren  v.  Lusk,  16 
Mo.  102;  Harbin  v.  Chiles,  20  Mo. 
314;  Newcombu.  Peck,  17  Verm.  302; 
Logansport  Gas  Co.  v.  Knowles,  2 
Dillon,  C.C.  421;  Wetherill  v.  Still- 
man,  65  Pa,  S.  105. 

2  Lapham  v.  Briggs,  27  Verm.  26; 
Wetherill  i'.  Stillman,  65  Penn  S. 
105. 

557 


§§561-562  LAW  OF  JUDGMENTS.  [Cliap.  XXVI. 

denying  its  effect  upon  an  issue  by  it  determined  on  tlie 
merits,  or  its  operation  as  a  merger  or  extinguishment  of 
the  original  cause  of  action.  But  it  was  soon  perceived  that 
a  man  living  at  one  extremity  of  the  Union,  might  he  made 
the  subject  of  judicial  proceedings  prosecuted  at  another 
extremity;  and  that,  through  presumption  very  different 
from  the  real  facts,  or,  from  direct  statements  incorporated 
in  the  record,  and  as  false  as  they  are  explicit,  he  might  be 
subjected  to  great  wrong,  a  wrong  from  which  he  could 
escape,  if  at  all,  only  by  such  proceedings  as  would  be 
available  to  him  if  he  were  a  resident  within  the  State  where 
the  wrong  was  perpetrated. 

§  562.  Cases  holding  that  Jurisdiction  is  al^ways  open 
to  Investigation. — A  proper  regard  for  the  inconvenience 
and  injustice  likely  to  ensue  from  giving  effect  to  the  letter 
of  the  law,  should  have  resulted  in  the  exercise  of  the  legis- 
lative authority  vested  in  Congress,  and  by  means  of  which 
the  existing  statute  could  be  so  modified  as  to  efface  its  ob- 
jectionable features.  But  the  necessity  of  such  an  amend- 
ment was  overcome,  in  a  majority  of  the  States,  by  the 
judicial  construction,  or  judicial  legislation,  under  which 
the  whole  qiiestion  of  the  jurisdiction  of  the  court  pro- 
nouncing the  judgment,  was  liable  to  be  re-opened,  at  the 
option  of  the  person  against  whom  such  judgment  was 
brought  forward,  in  another  State.  A  judgment  record  of 
another  State  is,  therefore,  at  present,  in  many  of  the 
States,  of  no  greater  effect  than  a  foreign  judgment  upon 
jurisdictional  issues.  The  jurisdiction  of  the  court  in  both 
cases  being  open  to  inquiry.^  "The  cases  are  obviously 
irreconcilable,  and  something  may  be  said  on  either  sido. 
If  the  statutory  provision,  that  a  judgment  shall  have  the 
same  faith  and  credit  as  in  the  State  where  it  was  rendered, 
extends  to  the  proceedings  of  the  court  as  set  forth  of 
record,  a  denial  of  notice,  or  of  the  authority  of  the  attor- 
ney, will  be  as  inadmissible  in  a  suit  on  the  judgment  of 
another  State,  as  it  confessedly  is  when  the  action  is  based 


1  Kerr  v.  Kerr,  41  N.  Y.  272;  Kane 
V.  Cook,  8  Cal.  449;  Bissell  v.  Briggs, 
9  Mass.4G8;  Hull  v.  Williams,  G  Pick. 

558 


240;  Shumway  v.  Stillman,  4  Cow. 
292;  Christmas  v.  Russell,  5  "Wallace, 
305;  Borden  v.  Fitch,  13  Johns.  121. 


Chap.  XXYI.]  EFFECT  OF  EECIT.VLS.  gg5G2-5G3 

on  a  domestic  judgment.  If,  on  the  otlier  hand,  the  design 
of  the  Constitution,  as  interpreted  by  the  statute,  is  that 
the  judgment  should  not  be  conckisive  unless  the  court 
had  jurisdiction  of  the  cause  and  the  parties,  there  will 
ahvajs  be  room  for  the  preliminary  inquiry  Avhether  the  de- 
fendant was  notified  or  appeared  voluntarily,  without  pro- 
cess. Between  these  views  there  is,  seemingly,  no  middle 
ground,  and  the  balance  of  convenience  inclines  strongly 
in  favor  of  the  latter  doctrine."^  The  effect  of  the  provis- 
ions of  the  act  of  1790,  upon  this  very  material  question, 
being  thus  involved  in  the  doubt,  produced  in  a  large  num- 
ber of  adjudged  cases,  opposite  in  the  natvire  of  the  con- 
clusions announced,  and  very  nearly  equal  in  the  numbers 
opposed  to  each  other,  Ave  must  remain  in  doubt  until  the 
act  shall  receive  further  interpretation  from  the  Supreme 
Court  of  the  United  States.  A  decision  already  made  by 
that  tribunal,  shows  in  general  terms  that  a  judgment  of  a 
sister  State  so  far  differs  from  a  domestic  judgment  as  to 
leave  the  question  of  jurisdiction  open  to  inquiry.-  Whether 
this  general  language  was  intended  to  apply  only  to  cases  in 
which  the  record  is  either  silent  upon  the  subject  of  juris- 
diction, or  speaks  in  indirect  and  ambiguous  terms,  or  was 
intended  to  sanction  an  attack  upon  the  verity  of  clear  and 
positive  jurisdictional  statements,  is  unknown.  But  as  the 
act  is  likely,  through  a  desire  to  avoid  hardship  and  incon- 
venience, to  undergo  a  little  judicial  interpolation,  the  de- 
sired object  can  perhaps  be  best  accomplished,  and  the  de- 
sign of  Congress  in  passing  the  act  be  most  nearly  realized, 
by  the  adoption  of  a  rule  which  shall  not  always  throw  silent 
records  open  to  attack,  nor  always  shut  out  the  truth  by  ex- 
plicit jurisdictional  averments. 

g  563.  Effect  of  Recitals  and  Averments  in  the  Rec- 
ords.— The  general  recital  that  the  defendant  appeared,  is, 
even  in  those  States  where  direct  jurisdictional  statements 
are  regarded  as  conclusive,  susceptible  of  explanation  and 


1  2  Am.  Lead.  Cas.  5tli  cd.  p.  0-16. 

2  Christmas  v.  Russell,  5  Wall.  290. 
The  question  seems  now  to  be  set- 
tled by  the  Supreme  Court  of  the 
United  States  in  favor  of  the  rule 
that,    when  a  judgment   of  a   sister 


State  is  relied  upon,  the  jurisdiction 
is  always  open  to  enquiry.  Thomp- 
son V.  Whitman,  and  Knowles  i'. 
Logansport  Gaslight  Co.,  decided 
Oct.  Term,  1S73,  Central  Law  Jour- 
nal, Vol.  1,  p.  303. 

559 


§^563-501 


LAW   OF  JUDGMENTS.  [Chap.  XXYI. 


avoidance  by  showing  that  the  appearance  was  by  an  un- 
authorized attorney.  It  is  also  thought  to  involve  no  dis- 
pute with  tlie  record  to  show  that  the  attorney  whom  it 
states  appeared  had  no  authority  so  to  do.^  "In  these  in- 
stances, however,  and  others  of  a  like  kind,  the  courts  have 
relied  on  the  well  known  rule  that  estoppels  must  be  certain, 
as  a  reason  for  admitting  evidence  that  might  have  been 
shut  out  by  a  clear  and  positive  recital.  There  was  said  to 
be  no  direct  or  necessary  conflict  between  an  averment  on 
the  one  part  that  the  defendant  appeared,  and  proof  on 
the  other  that  the  appearance  was  by  an  attorney  who  did 
not  represent  the  defendant.  And  there  has  been  a  mani- 
fest reluctance  to  go  beyond  this  and  assume  the  responsi- 
bility of  holding  that  an  unequivocal  allegation  that  the 
defendant  was  served  personally,  or  entered  a  personal  ap- 
pearance, can  be  disproved  by  parol  evidence."'  Neverthe- 
less, numerous  cases  exist  in  which  the  authority  to  con- 
trovert the  truth  of  unequivocal  allegations  found  in  the 
record  in  regard  to  jurisdiction  is  afiirmod  in  express  terms 
or  by  necessary  implication.^ 

§  564.  Jurisdiction  of  State  Courts  confined  in  State 
Lines. — It  is  said  that  "no  sovereignty  can  extend  its  pro- 
cess beyond  its  own  territorial  limits,  to  subject  either  per- 
son or  property  to  its  judicial  decisions.  Every  exertion 
of  authorit}''  of  this  sort  beyond  this  limit  is  a  mere  nullity."'* 
"While  the  Constitution  expressly  stipulates  for  the  faith 
and  credit  to  be  given  in  each  State  "to  the  public  acts, 
records  and  judical  proceedings  of  every  other  State," 
and  that  "Congress  may,  by  general  laws,  prescribe  the 
manner  in  which  such  acts,  records  and  proceedings  shall 
be  proved,  and  the  effect  thereof-"  it  is  not  probable  that,  in 


1  Lawrence  v.  Jarvis,  32  111.  30-4 ; 
Ealtzettv.  Nosier,  1  Iowa,  588;  Price 
V.  Ward,  1  Dutch.  225 ;  Ai-nott  v. 
Webb,  1  Dillon  C.  C.  3G2. 

2 Am.  Lead.  Cas.  5th  Ed.  G43;  see 
also  Sec.  5G0  of  this  work. 

SFiDueran  v.  Leonard,  7  Allen,  54; 

Norwood  V.  Cobb,  15  Tex.  500;  Eape 

V.  Hcaton,  9  Wis.  328;  Kerr  v.  Kerr, 

41  N.  Y.  272;  Starbuck  v.  Murray,  5 

5G0 


Wend.  148;  Noyes  v.  Butler,  6  Barb. 
513;  Norwood  r.  Cobb,  24  Tex.  551; 
Kane  v.  Cook,  8  Cal.  449;  Hoffman  v. 
Hoffman,  4G  N.  Y.  30;  Pollard  v. 
Baldwin,  22  Iowa,  328;  Carleton  v. 
Bickford,  13  Gray,  591;  McDermoti 
V.  Clay,  107  Mass.  501;  Marx  v.  Fore, 
1  Mo.  G9;  Easley  v.  McClinton,  33 
Tex.  288. 

4  Story's  Conflict  Laws,  sec.  539. 


Chap.  XXYI.]  STATE  COURTS.  gjG4: 

passing  tlio  act  of  1790,  any  intention  existed  of  extending 
the  judicial  authority  of  any  of  the  States  over  citizens  of  other 
States  not  voluntarily  coming  within  the  State  in  which  the 
original  suit  is  conducted.  * '  The  jurisdiction  of  State  courts 
is  limited  by  State  lines,  aud,  upon  principle,  it  is  difficult  to 
see  how  an  order  of  a  court,  served  upon  a  party  out  of  the 
State  in  which  it  is  issued,  can  have  any  greater  effect  than 
knowledge  brought  home  to  the  party  in  any  other  way,'" 
"It  is  a  well  settled  principle  of  law  in  the  decisions 
in  England  and  this  countr}-,  and  acquiesced  in  by  the  jurists 
of  all  civilized  nations,  that  immovable  property,  known  to 
the  common  law  as  real  estate,  is  exclusively  subject  to  the 
laws  and  jurisdiction  of  the  courts  of  the  nation  or  State 
in  which  it  is  located.  No  other  laws  or  courts  can  affect  it." 
Therefore,  a  judgment  or  decree  rendered  in  one  State  cannot 
of  itself,  affect  the  title  to  lands  in  another  State.-  It 
seems  to  be  generally  and  perhaps  universally  conceded, 
that,  by  no  means,  can  a  citizen  of  one  State  be  compelled 
to  go  into  another  State  to  litigate  a  civil  action,  by  means 
of  process  served  in  his  own  State;  and  that,  even  though 
process  from  the  courts  of  any  State  be  personally  served 
beyond  the  limits  of  the  State  whence  it  issued,  no  personal 
liability  against  the  defendant  can  result  therefrom  which 
will  be  recognized  beyond  the  State  in  which  the  action 
originated.^  If  then  a  court  of  no  State  can  acquire  juris- 
diction over  a  non-resident  by  virtue  of  actual  service  of 
process,  nor  by  any  means,  which  its  legislature  is  compe- 
tent to  describe,  can  it  derive  any  authority  from  its  own 
false  record  averments.  Should  not  a  judgment  against  a 
non-resident,  not  entering  a  voluntary  appearance,  always 
be  denied  any  extra  territorial  obligation  irrespective  of  the 
question  whether  the  record  is  silent  or  explicit  in  regard 


1  Eweru.  Coffin,  IG  Cush.  23;Eeber 
V.  Wright,  G8  Pa.  B.  471. 

•-'  Davis  V.  HeacUey,  22  N.  J.  Eq.  120. 

3  Wilson  u.  Graham,  4  Wash.  C.  C. 
53;  Folger  v.  Columbia  Iiis.  Co.,  99 
Mass.  207;  Moulton  v.  Treuiou  lus. 
Co.,  4  Zabr.  222;  Bradshaw  v.  Heath, 
13  Wend.  407;  Holmes  v.  Holmes,  4 
Lansing,  338;  Dunn  v.  Duuu,  4  -  iii. 


Ch.  425;  Hsey  v.  Wilson,  1  Dev.  & 
Batt.  Eq.  5G8;  Lawrence  v.  Jarvis,  32 
111.  301;  Price  i'.  Hickok,  39  Term. 
292- Weil  u.Lowenthal,  10  Iowa,  578; 
kitecle  V.  Smith,  7  \V.  &  S.  447;  Hall 
V.  Williams,  G  Pick.  222;  Harris  v. 
Hardeman,  14  How.  U.  S.  340;  Evans 
«.'.  Justin,  7  Ohio,  273;  Eeber  v. 
Wright.  GS  Pa.  S.  471. 


(30)  5G1 


§g5G4-565  LAW  or  judgments.  [Chap.  XXYI. 

to  jurisdiction?    Aud  ought  not  the  defendant  to  be  ahvays 
permitted  to  prove  that  he  was  a  non-resident,  and  that  ho 
did  not   submit   himself  to   the  jurisdiction  of   the  State 
whence  the  record  is  taken?     On  the  other  hand,  if  the 
defendant  were  a  resident  within  the  State  when  and  wh^re 
the  recDrd  was  made,  the  fact  of  his  subsequent  removal 
ought  neither  to  impair  nor  to  strengthen  the  obligation  of 
the  judgment.     To    whatsoever   State   he   emigrated,    the 
record,  when  produced  against  him,  should  have  the  effect 
which  would  be  given  it  in  like  circumstances  if  he  still  re- 
sided in  the  State  whence  it  was  taken;  and  this,  too,  inde- 
pendent of  the  question  whether  it  is  positive,  doubtful  or 
silent  in  reference  to  jurisdictional  facts.     It  seems  to  us, 
then,  that  the  only  issue  which  ought  to  be  tried  in  any 
State  in  regard  to  the  jurisdiction  of  a  court  which  has  ren- 
dered  a  personal  judgment  in  another  State   is,  was  the 
defendant,  when  the  suit  was   instituted,  within  the  State 
whose  court  assumed  to  exercise  authority  over  him,  or  if 
without  the   State,  did  he  submit  himself  to  its  authority. 
If  the  issue  should  be  answered  in  the  negative,  then  the 
judgment  ought  to  be  disregarded,  no  matter  how  positively 
the  record  enumerates  all  needful  jurisdictional  facts.     If, 
on  the  other  hand,  the  issue  be  determined  in  the  affirma- 
tive,  then  the  record  ought^   upon  jurisdictional  as  iipon 
other   questions,   to   have  precisely  "the  same  faith  and 
credit  given  it,  as  it  had  by  law  or  usage  in  the  courts  of 
the  State  whence  it  was  taken." 

§  565.  Jurisdiction  Presumed.  —  Courts  of  record  are 
presumed  to  act  onl}^  in  accordance  with  the  authority  vested 
in  them  by  law.  Their  judgments  will  generally  be  treated 
as  conclusive  on  the  parties  until  the  absence  of  jurisdiction 
is  affirmatively  shown.  These  principles  are  almost  uni- 
versally recognized  in  regard  to  domestic  judgments.  They 
are,  by  a  preponderance  of  the  authorities,  considered  as 
applicable  with  equal  force  to  judgments  of  other  States.^ 
"It  is  obviously  essential  to  the  effectual  operation  of  the 


1  Hassell  v.  Hamilton,  33  Ala.  2S0; 
Gunn  V.  Howell,  27  Ala.  G63;  Lat- 
terett  v.  Cook,  1  Iowa,  1;  Wilson  v. 
Jackbou,  10  Jlis.  329;  Nuun  v.  Stur- 


ges,  22  Ark.  389;  McLendonu.  Dodge, 
32  Ala.  491;  Scott  v.  Coleman,  5  Litt. 
349;  Lincoln  v.  Tower,  2  McL.  473; 
Teuucy  v.  Townseud,  9  Clatch.  274. 


Chap.  XXYI.]      COMING  within  a  state.  ^g5G5-566 

design  of  the  Constitution,  that  the  records  of  the  judg- 
ments of  other  States,  duly  authenticated  under  the  Act  of 
Congress,  shoukl  not  merely  prove  themselves,  but  give  rise 
to  a  presumption  that  the  court  possessed  the  authority 
which  it  assumed  to  exercise."'  But  it  is  conceded  tluit  the 
question  whether  jurisdiction  should  be  presumed  when  the 
record  of  judgment  of  another  State  fails  to  disclose  the 
facts  essential  to  its  existence,  is  not  altogether  free  from 
doubt;  and  that  in  some  instances  this  question  has  been 
determined  in  the  negative.^ 

§  5GG.  Coining -within  a  State. — We  have  already  shown 
that  by  no  means  can  a  State  compel  a  non-resident  to  come 
within  its  limits  to  answer  a  complaint  in  a  civil  action;  and 
that  if  it  should  undertake  to  do  so,  the  judgment  and  pro- 
ceedings would  not  be  recognized,  beyond  its  own  bound- 
aries, as  creating  any  personal  obligation.  But  a  citizen  of 
one  State  upon  going  voluntarily  into  another,  submits  him- 
self to  the  jurisdiction  of  the  courts  of  the  latter.  A  judg- 
ment pronounced  against  him  upon  service  of  process  upon 
him  while  temporarily  in  a  State,  is  as  binding  on  him  in 
every  other  State  as  it  is  in  the  State  in  which  it  was  ren- 
dered.^ If  it  appear  that  the  defendant  was  not  a  resident 
of  the  State  when  and  where  the  judgment  was  entered,  but 
that  his  property  was  attached  in  the  action,  and  the  record 
recites  "  that  it  appears  that  defendant  had  been  notified  of 
the  pendency  of  the  suit,"  this  recital  will  not  be  construed 
as  establishing  that  defendant  went  into  such  State  and  sub- 
mitted his  ])erson  to  its  jurisdiction.  The  words  quoted  were 
probably  designed  to  affirm  the  existence  of  nothing  in  addi- 
tion to  the  fact  that  such  notice  was  given  as  the  laws  of  the 
State  prescribed  to  authorize  a  valid  judgment  against  the 
property  attached.''  A  defendant,  without  going  into  a  State, 
may  submit  himself  to  its  jurisdiction  by  authorizing  some 
one  to  appear  for  him  there.     In  such  case  the  judgment 

• 

1  Am.  Lead.  Gas.  5th  Ed.  p.  G47,  i  338.  This  last  case  applies  to  de- 
and  numerous  authorities  there  cited.  I  crees  of  divorce  only. 


-  Warren  v.  McCarthy,  25  111.  95; 
Bimeler  v.   Dawson,    4    Scam.   541; 
Eangely  v.  Webster,   11  N.  H.  201);  ;  Duwuer  i'.  Shaw,  2  Foster,  277. 
Coiumouwealth   v.   Blood,  97  Mass.  ;      ^  Downer  v.  Shaw,  2  Foster,  277 


••'  ]\Iowry  V.   Chase,  100  Mass.  79  ; 
Murphy    v.    Winter,    IS    Geo.    GOO; 


oG3 


g^5GG-oG9 


LAW   OF  JUDGMENTS.  [Cliap.  XXVI. 


subsequently  entered,  is  obligatory  upon  him.'  So  if  a  per- 
son authorize  an  action  to  be  instituted  in  another  State,  in 
his  behalf,  he  becomes  thereby  subject  to  any  judgment 
which  may  be  taken  against  him  in  that  suit."  It  has  been 
held  that  if  a  person  residing  in  one  State  is  induced  by 
false  representations  to  come  into  another  State,  in  order 
that  service  of  process  ma}^  be  there  made  upon  him,  the 
jurisdiction  thus  acquired  is  fraudulently  obtained,  and  the 
judgment  based  thereon  will  not  be  enforced  against  him  in 
the  State  where  he  resides.^ 

^5G7.  Constructive  Service  on  Non-residents. — Per- 
sonal service  being  undoubtedly  ineffectual  to  call  into  being 
such  a  personal  judgment  as  will  be  given  extra-territorial 
effect  against  a  non-resident,  unless  the  service  w^as  made 
on  him  within  the  State,  it  follows,  a  fortiori,  that  no  greater 
effect  would  be  produced  if  the  service  were  constructive 
instead  of  personal.* 

§  5G8.     Constructive  Summoning  of  a  Corporation.  — 

The  statutes  of  some  of  the  States  authorize  service  of  sum- 
mons, on  a  foreign  corporation,  to  b.e  made  upon  some  offi- 
cer or  agent  residing  or  being  in  the  State  in  which  the  suit 
is  brought.  A  corporation  created  by  and  under  the  laws 
of  one  State,  cannot  be  deemed  to  pass  beyond  the  limits  of 
such  State.  A  service  on  any  of  its  agents  in  another  State, 
in  pursuance  of  some  statute,  cannot  be  considered  other- 
wise than  as  a  constructive  service,  the  judgment  upon 
which  can  possess  no  extra-territorial  effect.'' 

§  569.  Jurisdiction  Acquired  may  be  Continued  by 
Constructive  Service. — Cut  if  a  court  acquire  jurisdiction 
over  the  parties,  the  courts  of  the  same  State  may  proceed 


•  Walker  v.  Lathrop,  G  Iowa,  510  ; 
Hold  V.  Alloway,  2  Blackf.  103. 

2  Walton  V.  Sugg,  Phill.  N.  C.  98. 

3  Dnnlap  v.  Cody,  *31  Iowa,  2G0. 

^  Barkmau  v.  Hopkins,  6  Eng.  1(37  ; 
Whittier  v.  "Wendall,  7  N.  H.  257 ; 
Winston  v.  Taylor,  28  Mo.  82;  Inglo- 
liart  V.  Moore,  16  Ark.  'IG  ;  Ryan  v. 
Vallaudingham,  25  111.  125. 
50  i 


•'  La  Fayette  Ins.  Co.  v.  French,  18 
How.  U.  S.  40-1;  Latimer  v.  U.  P.  E. 
R.  Co.,  43  Mo.,  105;  Hurlbert  v.  Hope 
M.  L.  Ins.  Co.,  4  How.  Fr.  275  ; 
Brewster  w.  Michigan  Cent.  R.  R.  Co., 
5  How.  Pr.  183;  Bates  v.  New  Orleans 
k  J.  R.  R.  Co.,  13  How.  Pr.  516. 


Chap.  XXVI.]         CONSTRUCTIVE  SERVICE.  g§5G9-o70 

■until  the  final  termination  of  the  controversy,  although  one 
of  the  parties  is  a  non-resident.  Thus,  if  a  resident  of  one 
State  submits  himself  to  the  jurisdiction  of  a  subordinate 
court  of  another  State,  he  may  be  brought  as  respondent 
before  the  appellate  courts,  although  the  process  or  notice 
required  to  compel  him  to  appear  in  the  higher  court  can 
not  be  personally  served.  If  it  were  otherwise,  a  party 
unjustly  prevailing  in  the  subordinate  court  could  retain 
his  advantage  by  remaining  without  the  State.  The  appeal 
or  writ  of  error  must  be  regarded  not  as  a  new  suit,  but 
rather  as  the  continuation  of  an  old  one.  Whether  a  non- 
resident respondent  be  brought  into  the  appellate  court  by 
means  of  actual  or  constructive  notice,  a  judgment  will  be 
as  binding  on  him,  in  other  States,  as  the  judgment  of  the 
inferior  court  would  have  been  if  it  had  been  against  him.^ 

§  570.  Constructive  Service  on  Residents. — In  relation 
to  the  extra-territorial  effect  of  a  judgment  procured  against 
a  person  in  the  State  of  his  domicile,  in  an  action  in  which  he 
entered  no  appearance,  and  in  which  the  process  was  served 
constructively,  in  accordance  with  the  laws  of  that  State, 
radical  and  irreconcilable  differences  of  opinion  exist.  In 
one  case,  the  court  said:  "We  will  treat  the  judgment,  not 
as  void,  nor  as  conclusive,  but  simply  as  inima  facle.''"^ 
This  is  a  kind  of  middle  ground,  or  compromise  treatment 
of  the  question;  and,  like  most  compromises,  is  probably 
less  defensible,  upon  principle,  than  either  of  the  extremes 
between  which  it  is  placed.  The  position,  however,  which 
seems  to  be  best  sustained,  both  by  reason  and  by  prece- 
dents, is  that  each  State  has  the  authority  to  provide  the 
means  by  which  its  oiun  citizens  may  be  brought  before  its 
courts;  that  the  courts  of  other  States  have  no  authority  to 
disregard  the  means  thus  provided;  and,  finally,  that  every 
judgment  or  decree,  obtained  in  a  State  against  some  of  its 
citizens  by  virtue  of  a  lawful,  though  constructive,  service 
of  process,  should  be  as  obligatory  upon  such  citizen  in 


^  Nations  v.  Johnson,  24  How.  U. 
S.  195;  Cone  v.  Hooper,  18  Minn. 
531. 


Holt  V.  Alloway,  2  Blackf.  108. 


565 


|§570-571 


LAW   OF  JUDGMENTS.  [Chap.  XXYI. 


everj  other  State  as  it  is  in  the  State  whence  it  is  taken.' 
Nor  is  it  destructive  of  the  extra-territorial  effect  of  a  judg- 
ment based  on  constructive  service,  that  the  defendant,  be- 
ing a  citizen  of  the  State,  was  temporarily  absent  therefrom. 
It  is  sufficient  that  he  was,  at  the  time,  subject  to  the  laws 
of  the  State  and  to  the  territorial  authority  of  the  court. ^ 
Thus,  in  a  recent  Massachusetts  case,  in  which  a  judgment 
rendered  in  California,  was  called  in  question,  Wells,  J. 
delivering  the  opinion  of  the  Supreme  Judicial  Court,  said: 
"The  defendant  was  not  in  California  when  the  suit  was 
commenced  against  him  there;  nor  at  any  time  during  its 
pendency.  No  service  of  process  or  notice  was  ever  made 
upon  him  personally.  He  did  not  appear  by  counsel,  or 
otherwise,  nor  assent  to  the  judgment,  which  was  rendered 
upon  his  default  of  appearance.  But  he  had  been,  for  a 
long  time  before  that,  a  citizen  of  California;  the  contract 
was  made  there;  and  that  continued  to  be  his  legal  domicile 
when  the  judgment  was  rendered.  He  was,  therefore,  upon 
principles  of  international  right,  subject  to  the  laws,  and  to 
the  jurisdiction  of  the  courts  of  that  State." ^ 

On  the  other  hand,  it  is  insisted,  that  "a  merely  con- 
structive notice  by  publication  or  attachment  cannot  right- 
fully be  substituted  for  the  direct  and  actual  warning  which 
every  man  ought  to  have  before  being  condemned."  "  And 
that  a  sentence  so  pronounced  is  not  a  judgment  in  any  just 
sense  of  the  term,  and  should  not  be  enforced  by  any  court 
which  is  free  from  constraint."  * 

g  571.  By  what  Law  Considered. — In  the  considera- 
tion of  jurisdictional,  as  well  as  of  other  questions  in  regard 


1  McEae  v.  Mattoon,  13  Pick.  53; 
Poorinan  v.  Crane,  1  Wright  Ohio, 
347;  Hintou  v.  Toiiues,  1  Hill  S.  C. 
'139;  Spencer  r) .  Brockuwiiy,  1  Hamm. 
259;  Hunt  t-.Lyle,  8  Yerg.  142;  Green 
V.  Sarmiento,  1  Pet.  C.  C.  74;  Buford 
V.  Kirkpatrick,  13  Ark.  33. 

2  Eangeley  v.  "Webster,  11  N.  H. 
299;  Holt  v.  Holloway,  2  Black.  108; 
Bimeler  v.  Dawson,  4  Scam.  536; 
Welsh  V.  Svkes,  3  Gilm.   197;  Price 

5GG 


V.  Hickok,  39  Verm.  292;  Gilman  v. 
Lewis,  4  Zabr.  246;  Parker  v.  The 
Bank,  4  Zabr.  333. 

"  Henderson  v.  Staniford,  105  Mass. 
504.  See  also,  to  same  effect,  Gilles- 
pie V.  Comm.  Ins.  Co.  12  Gray,  201; 
Morrison  v.  Underwood,  5  Gush.  52; 
Orcutt  r.  llanuey,  10  Gush.  183. 

4  2  Am.  Lead.  Cas.  5th  Ed.,  pp.  654 
and  655. 


Chap.  XXVI.]        BY  WHAT  LAW  CONSIDERED.  §571 

to  the  eifect  to  "be  given  to  a  judgment  of  another  State,  the 
question  arises,  what  hiw  shall  the  court  apply  to  the  facts 
and  records  brought  before  it,  Avhen  the  parties  fail  to  show 
the  law  regulating  the  subject  in  force  in  the  State  whence 
the  record  is  taken?  Upon  one  hand,  it  is  insisted  that,  for 
this  purpose,  each  State  must  take  judicial  cognizance  of 
the  laws  of  the  other  States;  that  as  each  case  involving  the 
effect  of  a  judgment,  under  the  constitution  and  lafvs  of  the 
United  States,  is  liable  to  be  heard  on  appeal  in  the  United 
States  Supreme  Court,  where  judicial  notice  is  taken  of  the 
laws  of  each  State,  it  would  follow  that,  unless  the  State 
courts  also  take  like  notice,  the  case  would  be  determined 
in  the  lower  court  by  one  law,  and  in  the  appellate  court 
by  another  and  perhaps  entirely  dissimilar  law ;  ^  on  the 
other  hand,  and  supported  by  a  slight  preponderance  of 
authority,  it  is  held  that  "in  the  absence  of  proof,  a  court- 
could  not  take  notice  of  the  law  of  another  State,  and  should 
presume  that  it  was  in  accordance  with  their  [its]  own;"  ~ 
while  a  tliird  view  is  that,  in  the  consideration  of  the  judg- 
ment of  another  State,  it  will  be  presumed,  until  the  con- 
trary appears,  that  it  is  governed  by  the  ruLs  of  the  com- 
mon law,  and  a  record  insufficient  to  constitute  a  valid 
judgment  under  that  law  will  be  disregarded,  unless  its 
sufficiency  is  shown  by  some  law  of  the  State  whence  it  was 
taken.  ^  When  no  written  law  or  decision  is  produced  which 
shows  whether  a  service  disclosed  by  a  record  or  by  other 
proof  was  sufficient  in  the  State  where  it  was  made,  the 
testimony  of  experts  from  that  State  may  be  received  to 
enable  the  court  to  determine  whether  the  service  was  suffi- 
cient, according  to  usage  and  practice  of  the  courts  of  that 
State.*  A  judgment  of  another  State,  when  offered  in  evi- 
dence, ought  to  be  shown  to  be  valid.  If  it  would  not  be 
valid  if  rendered  in  the  State  where  it  is  offered  in  evidence, 
the  party  who  relies  upon  it  must  show  that  it  is  valid  ac- 
cording to  the  laws  of  the  State  within  whose  jurisdiction 
it  was  pronounced.  ^ 


1  State  V.  Hincliman,  27Pa.  St.  479; 
Baxter  v.  Linah,  16  Pa.  S.  243;  "Wil- 
son V.  Jackson,  10  Mo.  330. 

2 Am.  Lead.  Cas.  G50;  Pelton  v. 
Platner,    13   Ohio,  209;    Draggoo  v. 


Graham,  9  Incl.  212;  Eape  v.  Heaton, 
9  Wis.  328. 

sHewson  v.  Wall,  20  Ala.  298. 

■iMow-ry  v.  Chase,  100  Mass.  79. 

5  Crafts  V.  Clark,  31  Iowa,  77. 
507 


§§572-573  LAW  or  judgments.  [Chap.  XXYI, 

§  572.  Jurisdiction  of  Subject  Matter. — It  is,  of  course, 
essential  to  the  validity  of  a  judgment  rendered  in  another 
State,  that  the  court  have  jurisdiction  over  the  subject  mat- 
ter of  the  controversy.  A  State  can  no  more  exercise  juris- 
diction over  laud  beyond  its  boundaries  than  it  can  over 
the  citizens  of  other  States.  Thus,  if  a  probate  court  in 
one  State  made  an  order  under  which  lands  of  the  de- 
ceased lying  in  another  State  are  sold,  the  sale  is  null  and 
void,  for  want  of  authority  in  the  court  over  the  land  author- 
ized to  be  sold.^  For  the  same  reason,  a  conveyance  made 
by  the  officers  of  a  court  of  a  sister  State,  in  pursuance  of 
a  decree  of  such  court,  was  disi^egarded  as  to  lands  lying 
in  any  other  State.  2  "While  courts  of  one  State  have  no 
jurisdiction  to  determine  a  naked  question  of  title  to  lands 
in  another  State,  they  probably  are  competent  to  enforce  a 
trust,  irrespective  of  the  location  of  the  land,  and  to  decree 
a  conveyance,  though  in  so  doing  they  may  be  compelled  to 
determine  the  question  of  title.  ^ 

g  57.3.  Judgments  in  rem  will  be  considered  in  a  sep- 
arate chapter,  in  which  their  extra-territorial  effect  will  be 
stated.  But  a  class  of  judgments  will  be  spoken  of  here 
which,  though  frequently  styled  judgments  in  rem,  are  sim- 
ply judgments  obtained  by  one  kind  of  constructive  service. 
In  several  of  the  States,  process  may  be  served  by  attach- 
ing the  defendant's  real  or  personal  estate.  The  State  in 
which  the  property  is  situate  may,  no  doubt,  authorize  its 
seizure,  Tipon  attachment ;  and  the  courts  of  the  State  may, 
in  pursuance  of  State  laws,  exercise  jurisdiction  over  the 
property,  although  its  owner  is  not,  by  any  means,  brought 
within  the  jurisdiction  of  the  court.  The  disposition  made 
of  the  property  attached  is  as  final  and  conclusive  in  any 
State  to  which  it  may  be  removed,  as  it  was  in  the  State 
where  the  judgment  was  entered.^  But  if  the  seizure  of 
property  is  employed  as  a  constructive  service  of  process 


Wilkinson  u.  Leluud,  2  Pet.  G27. 

2  Page  V.  McKee,  3  Bush.  Ky.  135. 

3 McGregor  u.  McGregor,  9  low.i, 
65;  Masscy  1;.  Watts,  0  Cranch.  M8; 
Sturdevant  v.  Pike,  1  Cart.  277;  Lewis 
V.  Darling,  16  How.  U.  S.  1. 


4Moore  v.  Spackman,  12  S.  &  R. 
287;  Green  v.  Van  Buskirk,  7  Wall. 
139;  Hall  d.  Williams,  G  Pick.  232; 
Molyneux  r.  Seymour,  30  Geo.  440  ; 
Melhop  u.  Doane,  31  Iowa,  397. 


568 


Cliap.  XXYI.]  EFFECT  OF  JUDGMENT.  §§573-575 

on  the  defendant,  upon  which  a  judgment  in  personam  is 
entered,  such  judgment  can  have  no  greater  extra-territorial 
force  than  if  based  upon  any  other  constructive  service.^ 

§  574.  Joint  Debtor  Acts. — A  judgment  against  two  or 
more  joint  debtors  on  a  citation  served  on  but  one,  though 
authorized  by  the  laws  of  the  State,  is  not  binding  else- 
where upon  any  of  the  defendants  who  were  not  within  the 
State,  and  who  did  not  appear  in  the  action,''  "Personal 
judgments  thus  rendered  have  no  operation  out  of  the  lim- 
its of  the  State  where  rendered.  Their  effects  are  merely 
local.  Out  of  the  State  they  are  nullities,  not  binding  upon 
the  non  -  resident  defendant,  nor  establishing  any  claim 
against  him,"''  In  Oregon,  such  a  judgment  seems  to  be 
regarded  as  jJriina  facie  evidence  against  the  defendants  who 
were  not  served  with  process.* 

§  575,  Same  Effect  as  at  Home. — Except  in  regard  to 
the  allowance  and  effect  of  jurisdictional  inquiries,  the  char- 
acter of  a  judgment  of  a  sister  State  is  substantially  that  of 
a  domestic  judgment,'''  Its  effect,  however,  is  often  differ- 
ent from  that  of  a  similar  record  in  the  State  in  which  it 
is  sought  to  be  enforced,  because  it  is  governed  by  the  laws 
of  the  locality  where  it  was  created.  The  first  question  to 
be  determined  in  regard  to  a  judgment  of  another  State,  after 
jurisdictional  inquiries  have  been  satisfactorily  answered, 
is,  what  is  its  effect  in  the  State  whence  it  was  taken, "^  The 
effect  which  it  has  there  is  precisely  the  effect  which  must 


1  Arndt  v.  Arudt,  15  Ohio,  33;  Rob- 
insou  V.  Ward,  8  Johns.  86  ;  Kilburn 
V.  Woodworth,  5  Johns.  41;  Bates  v. 
Delavan,  5  Pai.  Ch.  299;  Thompson 
V.  Emmert,  i  McL.  9G  ;  Lincoln  u. 
Tower,  2  McL.  473;  Melhop  v.  Doane, 
31  Iowa,  397  ;  Ward  v.  McKenzie,  33 
Tex.  297  ;  Sevier  v.  Eoddie,  51  Mo. 
580. 

2  Rogers  v.  Burns,  27  Penn.  S,  525; 
Steel  V.  Smith,  7  W.  &  S.  451;  D'Arcy 
V.  Ketchnm,  11  How,  U.  S.  165; 
Phelps  V.  Brewer,  9  Cush,  390. 


3  Pnblic  Works  v.  Columbia  Col- 
lege, 17  Wall.  527. 

4  Swift  V.  Stark,  2  Oregon,  97. 

5  Rogers  v.  Odell,  39  N.  H.  452; 
Christmas  v.  Russell,  5  Wall.  290; 
Moulin  V.  Insurance  Co.,  4  Zabr.  222  ; 
Armory  v.  Armory,  3  Bissell,  266 ; 
Campbell  v.  Home  Ins.  Co.,  1  S.  G. 
158;  Barney  v.  White,  46  Mo.  137; 
Zimmerman  v.  Hesler,  32  Md.  274 ; 
Chew  V.  Brumagin,  21  N.  J.  Eq.  520, 

c Taylor  &  Co,r.  Runj-an,  3  Clarke, 
474;  Suydam  v.  Barber,  18  N.  Y.  468; 
Green  v.  Sarmiento,  3  Wash.  C.C.  17. 

5G9 


§§575  57G 


LAW   OF  JUDGMENTS.  [Cliap.  XXVI. 


be  accorded  to  it  iu  every  other  State. '     If  the  judgment 
appear  on  its  face  to  be  harsh  and  erroneous,  it  must  be 
received  and  enforced  irrespective  of  its  harshness."^     The 
pleas  which  might  be  made  to  it  at  home,  and  those  only, 
can  be  made  to  it  in  any  other  part  of  the  Union.^     If  the 
common   kiw   distinctions   in  forms  of   actions  have  been 
abolished  in  the  State  where  the  judgment  is  rendered,  then 
it  must  not  be  treated  in  other  States  according  to  the  rules 
growing  out  of  those  distinctions.-*     If  valid  under  the  law 
of  its  creation,  it  must  be  treated  as  valid  in  States  under 
whose  laws  it  would,  if  a  domestic  judgment  be  invalid.  ^  An 
interlocutory  decree  not  being  conclusive  at  home,  is  not 
conclusive  in  another  State.  ^     If  a  person  having  a  demand 
against  another,  go  into  *=  State  and  sue  upon  it,  and  the 
plea  of  the  statute  of  limitations  of  that  State  be  interposed 
and  sustained,  he  cannot  return  with  his  demand  to  the 
State  whence  he  took  it,  and  maintain  an  action  on  it  there. 
The  judgment  being  conclusive  against  him  where  entered 
is  equally  so  in  every  other  State.''     An  adjudication  made 
in  one  State  is  equally  conclusive  as  an  estoppel  iu  every 
other  State.''     A  decree  in  a  court  of  chancery  in  one  State 
enjoining  a  judgment  for  fraud,  is  conclusive  in  an  action 
on  the  judgment  in  another  State,  though  it  has  no  extra- 
territorial force  as  an  injunction.^ 

§  576.  Defenses. — All  defenses  which  are  admissible 
against  a  judgment  vv^here  it  was  pronounced,  are  equally 
admissible  in  actions  upon  it  in  another  State.  Want  of 
jurisdiction,  as  we  have  seen,  is  generally  recognized  as  a 
good  defense.      With   this    exception,   no   defense    which 


1  McLaren  V.  Kehler,  23  La.  Au.  80; 
Simmons  v.  Clark,  56  111.  96;  French 
V.  Pease,  10  Kans.  51 

2Eaukin  v.  Barnes,  5  Bush.  20, 
3 Cook  V.  Thornhill,  13  Tex.  293; 
Brundell  v.  Vaux,  2  Ball.  302;  Mills 
V.  Buryee,  7  Cranch.  481;  see,  how- 
ever, Judkins  v.  U.  M.  Fire  Ins.  Co., 
37  N  H.  4.70. 

4  Griffin  v.  Eaton,  27  111.  379, 
sClemmer  v.  Cooker,  24  Iowa,  185. 
cBaugh  V.  Baugh,  4  Bibb.  55G. 

570 


1  street  v.  Brackley,  53  Maine,  346. 

8  Cannon  v.  Branc,  45  Ala.  262; 
Blodgett  V.  Jordan,  G  Verm.  580; 
Spencer  v.  Eockway,  1  Hamm.  259; 
Cherry  v.  Speight,  28  Tex.  503;  Wern- 
wag  V.  Bawling,  5  G.  &  J.  500;  B.  E. 
Co.  V.  Winne,  14  Ind.  3S5;  Baker  v. 
Band,  13  Barb.  152;  Taylor  v.  Dry- 
den,  8  Johns.  173;  2  Am.  Lead.  Cas.. 
5th  Ed.  p.  619. 

9  Dobson  V.  Pearce,  12  N.  Y.  156. 


Chap.  XXVI.] 


DEFENSES. 


would  not    be  received  in  the  fornm  whence  the  judgment 
was  taken,  will  be  allowed  against  it  elsewhere,  unless  it 
be  fraud  in  its  procurement.  Whether  fraud  can  be  assigned 
as  a  defense,  seems  to  depend  upon  the  form  of  practice  in 
the  State  where  the  action  on  the  judgment  is  brought.    If,  in 
such  State,  fraud  can  be  pleaded  to  an  action  on  a  domestic 
judgment,   it  is  equally  available    and  equally  efiicient  in 
actions  on  judgments  of  other  States . '      But  if,  to  avoid  a 
domestic  judgment  for  fraud,  proceedings  must  be  insti- 
tuted in  equity,  then  like  proceedings,  and  those  only,  must 
be  resorted  to  as  against  a  judgment  of  another  State."  An 
action   on  a  judgment  confessed  in   another   State,   by  a 
power  of  attorney,  can  be  defeated  by  showing  that  the  de- 
fendant neither  executed  the  jjowerof  attorney,  nor  had  any 
notice  of  the  pendency  of  the  suit.  ^     To  an  action  in  Ten- 
nessee, on  a  judgment  rendered  in  Kentucky,  the  defend- 
ant pleaded,  that  plaintiff  took  advantage  of  political  pre- 
judices existing  when  the  suit  was  commenced,  to  combine 
with  citizens  of  the  latter  State  to  prevent  his  making  any 
defense;  and  that,  therefore,  defendant  permitted  default 
to  be  taken  because  he  could  not  appear  without  endangering 
his  life.     The  plea  was  decided  to  be  sufficient.'*     Nothing 
which  could  have  been  pleaded  in  the  original  action  can  be 
pleaded  against  the  judgment.  ^    Errors  and  irregularities  in 
the  proceedings  in  the  original  suit,  do  not,  in  any  respect, 
impair  the  effect  of  the  judgment,  unless  taken  advantage 
of  by  an  appeal,  or  some  other  appropriate  correctory  pro- 
ceeding."    An  action  may  be  maintained  on  the  judgment 
of  another. State  during  the  pending  of  an  appeal  or  writ  of 
error.''     The  following  plea,  involving  a  denial  of  the  juris- 
diction of  the  court  was  said  to  exclude  every  hypothesis 
in  favor  of  the  judgment:  "And  the  said  defendant  says 


12  Am.  Lead.  Cas.  5th  ed.  638; 
Kogers  v.  Gwin,  21  Iowa,  58.  See 
also  Davis  v.  Headley,  22  N.  J.  Eq. 
115;  David  v.  Smith,  5  Geo.  274. 

2  2  Am.  Lead.  Cas.  5th  ed.  5S-9. 

3  Wilson  V.  Bank  of  Mount  Pleas- 
ant, G  Leigh,  570. 

i  Coffee  L-.  Neely,  2  Heisk.  304. 
SNorwood  v.   Cobb,  20  Tex.   58S; 


Goodrich  v.  Jenkins,  6  Hamm.  43. 

eStmble  v.  Malone,  3  Clarke,  586; 
Conway  v.  Ellison,  14  Ark.  3G0;  Olds 
u. Glaze,  7  Iowa,  86; Crawford  v.  Exi-s. 
of  Simouton,  7  Porter,  110. 

TBank  v.  Wheeler,  28  Conn.  433; 
Merchants'  Ins.  Co.  v.  DeWoif,  9 
Casey,  45;  2  Am.  Lead.  Cas.  5th.  ed. 
652. 

571 


g§57G-o77  LAW  OF  JUDGMENTS.  [Cliap.  XXYI, 

that  at  tlie  time  when  said  proceedings  were  commenced  as 
set  forth  in  said  declaration,  and  from  that  time  up  to  and 
at  the  time  when  said  supposed  judgment  was  rendered  as 
aforesaid,  he,  the  said  defendant,  was  a  citizen  of  the  State 
of  Arkansas,  and  resident  therein,  and  was  not  served  with 
process,  and  had  no  notice  whatever  of  the  pendency  of 
said  action,  and  that  he  never  appeared  thereto  in  person 
nor  by  attorney,  and  this  he  is  ready  to  verify. 


"1 


§  577.  Of  Courts  not  of  Record. — The  means  provided 
by  Congress  for  the  authentication  of  judicial  records  and 
proceedings,  are  not  applicable  to  judgments  of  the  justice 
of  the  peace.  The  attestation  prescribed  by  the  act  of  1790 
must  be  made  by  the  clerk,  with  the  seal  of  the  court,  if 
there  be  one,  annexed,  and  by  the  certificate  of  the  chief 
justice  or  presiding  magistrate,  as  the  case  may  be.  It 
seems  to  be  generally  conceded  that  in  all  cases  where 
judgment  cannot,  from  the  nature  of  the  court  in  which 
it  originated,  be  authenticated  under  the  act  of  Congress, 
its  effect,  in  another  State,  is  no  greater  than  that  of  a 
foreign  judgment  to  which  nil  debit  is  a  ]n'oper  plea.'-  In 
New  Hampshire  it  is  said  that  a  judgment  of  a  justice  of  the 
peace  of  another  State  must  be  considered  "as  leaving  the 
whole  merits  of  the  case  open  for  discussion  and  examina- 
tion, and  that  the  defendant  is  not  estopped  from  setting  up 
a  payment  made  before  the  judgment  was  rendered.^  But 
in  other  States  these  judgments  are  undoubtedly  given 
greater  effect  than  is  accorded  to  them  in  New  Hampshire  ; 
and  are,  when  proved  in  the  same  manner  as  a  foreign 
judgment  could  be  proved,  and  shown  to  be  authorized  by 
the  laws  of  the  State  whence  they  are  taken  and  to  have 
been  pronounced  bj'  tribunals  having  jurisdiction  over  the 
parties  to  the  suit,  and  the  subject  matter  in  controversy, 
conclusive  upon  the  merits ;  though  the  plea  properly  filed 
in  the  action  may  be  called  nil  debit  or  non  assiimiisil.'^  The 
judgment  of  a  justice  of  the  peace  of  another  State  must 


1  Barkman  v.  Hopkins,  6  Eng.  IGl. 

2  Graham  v.  Grigg,  3  Harr.  408 ; 
Taylor  V.  Barron,  10  Foster,  78;  War- 
ren V.  Flagg,  2  Pick.  448 . 

2  Robinson  v.  Prcscott,  4  N.  H.  450. 

572 


4  Silver  Lake  Bank  v.  Harding,  5 
Hamm.  54G ;  Carpenter  v.  Pike,  30 
Verm.  81;  Kean  v.  Eice,  12  S.  and  R. 
203;  Danforth  v.  Thompson,  34  Iowa, 
243. 


Cliap.  XXVI.]        DIVORCE   IN  ANOTHER   STATE.  §§577-580 

' '  be  proved  by  tlie  oath  of  witnesses  who  have  compared 
the  copy  produced  in  evidence"  with  the  original.^  The 
question  of  w^hat  constitutes  a  sufficient  authentication  of 
judicial  proceedings,  under  the  law  of  Congress,  has  been 
considered  in  the  chapter  on  "Judgments  as  Evidence." 

§  578.  Courts  of  the  United  States. —  The  same  rule 
applies  to  judgments  rendered  in  the  United  States  courts, 
wdien  relied  upon  in  another  State,  as  that  which  would,  in 
like  circumstances,  be  applied  to  the  judgment  of  any  court 
of  record  of  another  State. ^ 

3  579.  Dd'crees  of  Divorce  in  States  to  which  both 
Parties  have  Removed. — AYlieu  the  spouses  remove  from 
the  State  in  which  they  were  married,  the  marriage  relation 
becomes  subject  to  the  laws  of  the  State  of  which  they  he- 
come  bo  na/ldevesidents;  and  a  divorce  granted  there,  though 
for  some  cause  not  recognized  as  sufficient  where  the  mar- 
riage was  celebrated,  would  be  binding  on  both  parties  in 
every  other  State. ^ 

§  580.  Divorce  in  another  State  by  Parties  going 
there  to  Procure  it. — No  doubt  is  entertained  in  regard  to 
the  conclusive  effect  of  a  divorce  obtained  in  a  State  to 
wdiich  the  parties  have  removed  with  the  intention  of  mak- 
ing their  domicile  there.  But  many  instances  occur  in  which 
the  removal  is  apparently  for  the  purpose  of  procuring  a 
divorce  for  some  act  not  regarded  as  a  sufficient  cause  at  the 
place  of  its  commission,  or  in  order  to  avoid  such  a  defense 
as  would  probably  be  made  if  the  action  were  prosecuted 
near  the  domicile  of  the  defendant.  No  doubt  most  of  the 
State  courts  have  deemed  a  divorce  so  procured  the  con- 
summation of  a  fraud  upon  the  laws  and  courts  of  the  State 
where  the  cause  of  divorce  was  alleged  to  have  occurred, 
as  well  as  upon  the  defendant,  and  have  refused  to  pay  it 
any  respect  whatever.     Thus  the  judge  who  delivered  the 


1  Am.  Lead.  Cas.  5tli  ed.  060. 

^Niblett  r.  Scott,  4  La.  An.  240; 
Barney  v.  Patterson,  6  H.  &  J.  182; 
Tkompson  v.  Lee  County,  22  Iowa, 
206. 

3  Barber  v.  Root,   10   Mass.    265; 


Pawling  V.  Bird's  Exr's.,  13  Johns. 
192;  Vischer  u.  Yisclier,  12  Barb.  G40; 
Harding  u  Allen,  9  Greenl.  148;  Fel- 
lows V.  Fellows,  8  N.  H.  160;Tolenu. 
Toleu,  2  Blkf .  407. 


0/3 


§§580-531  LAW  OF  JUDGMENTS.  [Cliap.  XXYI. 

opinion  of  tlio  court  in  a  recent  case  in  New  York,  took 
the  ground  that  only  the  courts  of  the  State  having  juris- 
diction over  the  domicile  of  the  parties  at  the  commission  of 
the  act,  can  grant  a  divorce,  because  they  alone  have  juris- 
diction over  the  subject  matter;  and  said  "I  cannot  agree  to 
the  proposition  that  a  party  domiciled  in  this  State,  desir- 
ing a  divorce,  for  a  cause  occurring  here,  for  which  such  a 
divorce  will  not  be  granted  by  the  laws  of  this  State,  can 
remove  to  another  State,  where  the  act  complained  of  is 
legal  cause  for  such  divorce ;  and  then,  upon  the  ground  of 
such  act,  occurring  here,  before  his  becoming  domiciled 
there,  obtain  the  decree,  and  then  return  to  this  State  and 
use  it  here  for  any  purpose.'"  If  a  decree  of  divorce  ren- 
dered in  another  State  contain  the  recital  that  the  parties 
resided  in  such  State,  this  decree  may  be  contradicted,  and 
its  effect  entirely  destroyed,  by  shov/ing  that  they  had  their 
domicile  in  a  difiterent  State;  and  a  party  procuring  such  de- 
cree may  be  convicted  of  bigamy  in  the  State  of  his  actual 
domicile,  if  he  contract  another  marriage  there. ^ 

§  581.  Cases  -where  Divorces  inay  be  granted  against 
Non- Residents.  —  We  have  already  seen  that  neither  the 
section  of  the  Constitution  of  the  United  States  in  regard 
to  judicial  proceedings  of  other  States,  nor  the  act  of  Con- 
gress on  the  same  subject,  extends  the  authority  of  the 
courts  of  one  State  so  as  to  authorize  them  to  take  jurisdic- 
tion over  the  citizens  of  other  States.  Some  modification 
of  this  construction  seems  unavoidable  in  proceedings  for 
divorce.  "Suppose  a  husband  commits  adultery,  and  then 
purchases  a  house,  and  actually  takes  up  his  domicile  in  an- 
other State ;  but  before  his  wife  has  joined  him,  she  is  ap- 
prised of  the  fact,  and  immediately  files  a  libel  for  divorce , 
and  obtains  an  order  to  protect  her  from  the  power  of  her 
husband,  as  by  law  she  may.  He  is  an  inhabitant  of  another 
State,  and  can  in  no  sense  be  said  to  live  in  any  county  in 
this  State.  And  yet  it  would  be  difiicult  to  say  that  she  is 
not  entitled  to  have  a  divorce  here.     Supposing,  instead  of 

1  Holmes   v.    Holmes,   4   Lansing,  *  Greenlaw  u.  Greenlaw,  12  N.  H.  200  ; 


388  ;  sec,  to  same  effect,  Inhabitants 
of  Hanover  v.  Turner,  14  Mass.  221 ; 

574 


Lyon  V.  Lyon,  2  Gray,  3G9. 
2  People  V.  Dawell,  25  Mich.  247. 


Chap.  XXVI.]  DIVORCES  against  non-residents.  g581 

the  last  case,  he  has  actually  purchased  a  house  and  changed 
his  domicile  to  another  State,  and  there  commits  adultery, 
and  the  wife  noi  having  joined  him,  and  not  having  left  her 
residence  in  this  State,  becomes  acquainted  with  the  fact, 
and  libels  and  obtains  a  similar  order,  could  she  not  main- 
tain it  ?     Yet,  in  the  latter  case,  at  the  time  of  the  act  done, 
and  in  the  other  at  the  time  of  the  suit  instituted,  the  re- 
spondent, one  of  the  parties,  did  not  live  in  this  common- 
wealth.    This  suggests  another  course  of  inquiry ;  that  is, 
how  far  the  maxim  is  applicable  to  this  case,  that  the  domi- 
cile of  the  wife  follows  that  of  her  husband.    Can  this  maxim 
be  true  in  its  application  to  this  subject,  where  the  wife 
claims  to  act  and  by  law,  to  a  certain  extent,  and  in  certain 
cases,  is  allowed  to  act  adversely  to  her  husband  ?     It  would 
oust  the  court  of  its  jurisdiction  in  all  cases  where  the  hus- 
band should  change  his  domicile  to  another  State  before 
the  suit  is  instituted.     It  is  in  the  power  of  the  husband  to 
change  and  fix  his  domicile  at  will.     If  the  maxim  could 
apply,  a  man  might  go  from  this  country  to  Providence, 
take  a  house,  live  in  open  adultery,   abandoning  his  wife 
altogether,  and  yet  she  could  not  libel  in  this  State,  where, 
till  such  a  change  of  domicile,  they  had  always  lived.    It  is 
probably  a  just  view  to  consider  that  the  maxim  is  founded 
upon  the  theoretic  identity  of  person  and  of  interest  be- 
tween husband  and  wife,  as  established  by  lav/,  and  the 
presumption  that,  from  the  nature  of  that  relation,  the  home 
of   one   is   that   of   the   other,  and  intended   to   promote, 
strengthen  and  secure  their  interests  in  this  relation,  as  it 
ordinarily  exists  where  union  and  harmony  prevail.     But 
the  law  will  recognize  a  wife  as  having  a  separate  existence, 
and  separate  interests,  and  separate  rights,  in  those  cases 
where  the  express  object  of  all  proceedings  is  to  show  that 
the  relation  itself  ought  to  be  dissolved,  or  so  modified  as 
to  establish  separate  interests,   and  especially  a  separate 
domicile  and  home,  bed  and  board  being  put,  a  part  for  the 
wdiole,  as  expressive  of  the  idea  of  home.'"     The  courts  in 
Massachusetts  recent!}^  took  jurisdiction  of  a  case  which 
was  a  little  different  from  either  of  the  hypothetical  cases 
stated  in  the  foregoing  opinion  of  Chief  Justice  Shaw.     A 

1  Chief  Justice  Shaw  iu  Harteau  r.  Harteau,  14  Pick.  181. 

575 


§§581-584  LAW  OF  JUDGMENTS.  [Chap.  XXVI. 

liusbaucl  and  wife  left  Massachusetts,  hitending  to  remove 
to  Colorado,  and  to  have  their  permauent  domicile  there. 
They  stopped  temporarily  at  Philadelphia  when  on  their 
way  to  Colorado.  The  husband  there  committed  acts  of 
crnelty,  on  account  of  which  the  wife  returned  to  her  former 
home  and  applied  for  a  divorce.  The  husband  did  not  re- 
turn to  Massachusetts ;  but  the  courts  of  that  State  never- 
theless exercised  jurisdiction  over  him  for  the  purpose  of 
giving  the  wife  the  relief  sought  for  his  violation  of  the 
marriage  contract.^ 

§  582.  Domicile  of  Wife.— That  the  domicile  of  the 
husband  is  in  law  the  domicile  of  the  wife  is  not  true 
where,  on  account  of  a  final  separation,  they  have  taken  up 
their  residences  in  different  States,'  nor  where  the  husband 
is  guilty  of  such  a  violation  of  his  marital  engagements  as 
entitles  the  wife  to  a  partial  or  entire  dissolution  of  the 
marriage  relation.^ 

§583.  Constructive  Service  Rejected. — Now  when, 
from  any  cause,  the  domicile  of  the  parties  is  no  longer 
in  contemplation  of  the  law  identical,  but,  on  the  contrary, 
has  become  susceptible  of  separation,  and  the  parties  in 
fact  reside  in  different  States,  it  is  evident  that  neither 
party  could  obtain  the  redress  authorized  by  law  unless  the 
State  courts  can  render  a  decree  which  will  be  binding  on 
the  non-resident  defendant.  The  courts  of  the  State  of  New- 
York  deny  that  if  a  husband  and  wife  have  their  domicile 
in  that  State,  either  of  them  can  go  into  another  State  and 
obtain  a  divorce,  without  the  appearance  of  the  defendant, 
which  can  be  of  any  validity  in  New  York.^  In  Pennsylva- 
nia, it  is  held  that  the  injured  spouse  must  seek  redress  in 
the  State  where  the  injury  was  committed,  unless  the  de- 
fendant remove  from  the  common  domicile.'' 

3  581.     Constructive  Service  Effective. — But  if,  from 


1  Shaw  V.  Shaw,  98  Mass.  158. 

*  Jenness  v.  Jenness,  24  Ind.  355. 

3  Ditson  V.  Ditsou,  4  R.I.  87;  Hard- 
ing V.  Alden,  9  Greenl.  140  ;  Maguiro 
t'.Maguire,  7  Dana,  181;  IloUister  u. 
HolUster,  6  Penn.  S.449. 


*  Visher  v.  Vishcr,  12  Barb.  C.40 ; 
Holmes  v.  Holmes,  4  Lansing,  388  ; 
Hoffman  v.  Hoffman,  4G  N.  Y.  30; 
Kerr  v.  Kerr,  41  N.  Y.  272. 

■■  Eeed  v.  Elder,  G2  Pa.  St.  308. 

576 


Chap.  XXYI.]      DIVORCE  IN  SISTER  STATES.     '  §§584-585 

the  destruction  of  their  common  domicile,  the  injured  party 
has  been  authorized  to  acquire  and  has  acquired  a  domicile 
in  another  State,  in  which  the  dissolution  of  the  marriage  is 
sought,  then  there  is  an  absolute  necessity  for  some  means 
by  which  the  courts  may  compel  the  non-resident  defendant 
to  submit  his  claims  to  a  continuance  of  the  marriage  rela- 
tion to  their  jurisdiction.  The  means  usually  provided  by 
statute  consists  of  some  constructive  service  of  process,  as 
by  the  publication  of  the  summons  for  a  specified  time  in 
some  public  journal.  Judgments  procured  in  any  State  by 
constructive  service  of  process  upon  non-residents,  are,  as 
we  have  already  seen,  of  no  extra-territorial  force  in  impos- 
ing obligations  in  personam.  But  a  sentence  of  divorce  has, 
or  may  have,  a  dual  nature.  It  is  a  decree  i?i  rem,  so  far  as 
it  fixes  the  status  of  the  parties  by  dissolving  their  marital 
obligations.  But,  so  far  as  it  disposes  of  any  other  matter 
than  the  marriage  relation,  it  is  in  personam.  The  decisions 
already  cited  from  the  New  York  Reports,  refuse  to  recog- 
nize a  decree  of  divorce  rendered  in  another  State,  upon 
constructive  service  of  summons  against  a  non-resident. 
But,  in  this  respect,  the  New  York  cases  are  not  sustained 
by  the  adjudications  made  in  other  States.^ 

§  585.  Summary  of  Law  of  Divorce  in  Sister  States. 
The  conclusions  which  are  sustained  by  a  decided  majority 
of  the  cases,  are  very  clearly  and  correctly  stated  by  Mr. 
Cooley,  in  his  work  on  Constitutional  Limitations,  in  the 
following  language  :  "We  conceive  the  true  rule  to  be,  that 
the  actual  bona  fide  residence  of  either  husband  or  wife  with- 
in a  State  will  give  to  that  State  authority  to  determine  the 
status  of  such  party,  and  to  pass  upon  any  question  affecting 
his  or  her  continuance  in  the  marriage  relation,  irrespective 
of  the  locality  of  the  marriage  or  of  any  alleged  offense;  and 
that  any  such  court  in  that  State  as  the  Legislature  may 
have  authorized  to  take  cognizance  of  the  subject,  may  law- 
fully pass  upon  such  questions  and  annul  the  marriage  for 

1  Hull  V.  Hull,  2  Strob.  Eq.  174  ;    risen,  19  Ala.  499 ;  Thompson  r.  The 


Mauley  v.  Manley,  4  Chanel.  97;  Hub- 
bell  V.  Hubbell,  3  Wis.  G62;  Mansfield 
V.  Mclntyre,  10  Ohio,  28  ;  Ditson  v. 
Ditson,  4  E,.  I.  87  ;  Harrison  r.  Har- 


State,  23  Ala.  12;  Harding  v.  Alden,  9 
Greenl.  146  ;  Maguire  r.  Maguire,  7 
Dana,  181;  Heirs  of  Holman  v.  Bank 
of  Norfolk,  13  Ala.  369. 


(37)  577 


g§ 585-587  LAW  OF  judgments.  [Chap.  XX YI. 

any  cause  allowed  bj  the  local  law.  But  if  a  party  goes  to 
a  jurisdiction  other  than  that  of  his  domicile  for  the  purpose 
of  procuring  a  divorce,  and  has  residence  there  for  that  pur- 
pose only,  such  residence  is  not  honajide,  and  does  not  con- 
fer upon  the  courts  of  that  State  or  country  jurisdiction  over 
the  marriage  relation ;  and  any  decree  they  may  assume  to 
make  would  be  void  as  to  the  other  party.'"  The  summary 
of  the  law  just  quoted  has  been  confirmed  by  the  Supreme 
Court  of  the  United  States,  so  far  as  it  assumes  that  the 
petition  for  divorce  may  be  received  and  adjudicated  upon 
by  the  courts  of  any  State  in  which  the  j)etitioner  has  a 
bona  fide  domicile,  irrespective  of  the  place  of  the  marriage, 
of  the  offense,  or  of  the  domicile  of  the  defendant.^  And 
while  the  language  employed  in  this  same  opinion  of  the 
Supremo  Court  of  the  United  States  affirms,  in  general 
terms,  that  a  decree  of  divorce,  valid  and  effectual  by  the 
laws  of  the  State  where  it  was  procured,  is  valid  and  effect- 
ual in  all  other  States,  we  do  not  understand  that  this  or  any 
other  part  of  the  opinion  was  designed  to  uphold  a  decree 
obtained  by  a  party  who  "goes  to  a  jurisdiction  other  than 
that  of  his  domicile  for  the  purpose  of  procuring  a  divorce, 
and  has- residence  there  for  that  purpose  only." 

§  586.  Effect  as  Decree  in  rem.  —  So  far.  as  the  decree 
or  judgment  of  divorce  assumes  to  dispose  of  questions  other 
than  that  of  the  marriage  status  of  the  parties,  it  is  not  a  de- 
cree in  rem,  and  can  have  no  extra-territorial  obligation, 
unless  the  defendant  was  within  the  jurisdiction  of  the 
court.  If  it  award  alimony,  or  costs,  to  the  complainant, 
or  make  any  disposition  in  regard  to  the  custody  of  the 
children,  such  award  is  of  no  force  beyond  the  State  where- 
in it  was  made.^ 

§  587.  In  a  recent  Case  in  Massachusetts  the  entirely 
novel  view  was  announced,  that  the  proceedings  of  a  court 
of  record,  when  acting  upon  an  application  for  a  divorce, 
were  not  supported  by  the  same  presumptions  which  would 


1  Cooley's  Const.  Lim.  pp.  400,  401; 
see,  also,  Wharton's  Conflict.  Laws, 
^  224  to  239. 

2  Cheever  v.  Wilson,  9  Wall.  108. 

578 


3  Jackson  v.  Jackson,  1  Johns.  424; 
Crane  v.  Meginnis,  1  G.  &  J.  463  ; 
Towuseud  v.  Griffin,  4  Harr.  440; 
Cooley's  Const.  Lim.  p.  40G. 


Chap.  XX YI.]  EECENT  CxVSE.  g587 

support  the  records  of  the  same  court  when  exercising  its 
jurisdiction  upon  other  matters.  The  court  said  :  "  The  pa- 
per offered  as  a  record  was  not  admissible.  There  was  no 
proof  that  the  court  in  California  had  jurisdiction  of  the 
cause  and  the  parties.  Although  a  court  of  record,  its  juris- 
diction of  the  subject  of  divorce  is  a  special  authority  not 
recognized  by  the  common  law,  and  its  proceedings  stand 
on  the  same  footing  with  those  of  courts  of  limited  juris- 
diction."' 

1  Commonwealth  v.  Blood,  97  Mass.  538. 

679 


§588  LAW  or  JUDGMENTS.        [Cliap.  XXYII. 


CHAPTEE  XXYII. 

FOREIGN   JUDGMENTS-. 

§  SSS.  Of  Jurisdictional  Inquiries. 

§  589.  Of  Jurisdiction  over  Absentees. 

§  590.  Of  Jurisdiction  over  Corijorations. 

§  591.  Effect  of  Fraud. 

§  592.  Distinction  between  Judgments  as  Causes  of  Action,  and  as  Pleas  in  Bar. 

§  593.  Decree  of  Dismissal. 

§  594.  Conclusive  in  England. 

§  595.  Founded  on  Mistake  of  Law. 

§  59G.  Kule  of  American  Cases. 

§  597.  Arguments  for  Conclusive  effect  of  Foreign  Judgments. 

§  598.  Foreign  Decree. 

§  599.  Foreign  Decree  of  Discharge  of  Insolvent. 

§  600.  Control  of  Equity  over  Foreign  Judgments. 

§  601.  Of  Interested  Couit. 

§  C02.  Effect  of  Appeal. 

§  603.  Presiuiied  to  bo  Based  on  Written  Complaint. 

§  C04.  Courts  of  the  Southern  Confederacy. 

§  605.  Are  not  Kecords. 

§  588.  Of  Jurisdiction. — The  question  wliicli  first  sug- 
gests itself  in  regard  to  foreign  judgments,  is  one  which  we 
have  had  occasion  to  investigate  in  reference  to  every  other 
kind  of  judgment,  viz. :  is  the  jurisdiction  of  the  court  an 
open  question  ;  and  if  so,  were  the  subject  matter  of  the 
controversy  and  the  party  against  whom  the  judgment  has 
been  pronounced,  within  the  jurisdiction  of  the  court?  In 
treating  of  the  judgments  of  other  States  of  the  American 
Union,  we  have  shown  that,  notwithstanding  the  provisions 
of  the  Constitution  and  of  the  statutes  made  in  pursuance 
thereof,  no  judgment  can  bo  of  any  validity  beyond  the  State 
wherein  it  was  entered,  unless  the  defendant  was  a  citizen 
of  such  State ;  or  unless,  by  some  act  of  his,  he  submitted 
himself  to  its  laws,  and  thereby  became  subject  to  the  au- 
thority of  its  courts.'  The  same  general  principle  is  applied 
to  foreign  judgments,  as  will  be  made  apparent  by  quota- 
tions from  the  opinion  of  the  court  of  Queen's  Bench  in  a 

1  See  Sec.  564. 
680 


Chap.  XXVII."!  OF  JURISDICTION.  g588 

recent  English  case.'  This  case  was  an  action  on  a  judg- 
ment of  a  French  tribunal  given  against  the  defendants  for 
default  of  appearance.  Among  the  pleas  to  the  action,  was 
"a  special  plea  asserting  that  the  defendants  were  not  resi- 
dent or  domiciled  in  France,  or  in  any  way  subject  to  the 
jurisdiction  of  the  French  court,  nor  did  they  appear ;  and 
that  they  were  not  summoned,  nor  had  any  notice  or  knowl- 
edge of  the  pending  of  the  proceedings,  or  any  opportunity 
of  defending  themselves  therefrom."  On  the  trial  it  ap- 
peared that  the  plaintiif  was  a  Dane,  resident  in  France ; 
and  that  the  defendants  also  were  Danes,  but  they  were 
resident  in  London.  The  action  in  the  French  court  was 
to  obtain  damages  for  an  alleged  violation  of  a  contract. 
The  place  at  which  the  contract  was  made  did  not  clearly 
appear;  but  "the  fair  intendment  from  the  evidence  was 
that  it  was  made  in  London."  "The  following  admissions 
were  made,  namely  :  that  the  judgment  was  regular,  accord- 
ing to  French  law  ;  that  it  was  given  in  favor  of  the  plaintiff, 
a  foreigner,  domiciled  in  France,  against  the  defendants, 
domiciled  in  England,  and  in  no  sense  French  subjects, 
and  having  no  property  in  Franco."  It  also  appeared  that 
process  was  issued  out  of  the  French  court,  "and  the  French 
consulate  in  London  served  on  the  defendants  a  copy  of  the 
citation."  The  jury  found  that  the  defendants  had  knowl- 
edge and  notice  of  the  summons  and  of  the  pendency  of  the 
action  in  time  to  make  their  defense  in  the  French  court. 
BIr.ckburn,  J.,  in  delivering  the  opinion  of  the  Court  of 
Queen's  Bench,  said  :  "We  were  much  pressed  on  the  argu- 
ment with  the  fact  that  the  British  legislature  has,  by  the 
Common  Law  Procedure  Act,  1852,  conferred  a  power  of 
summoning  foreigners,  under  certain  circumstances,  to  ap- 
pear, and  in  case  they  do  not,  giving  judgment  against  them 
by  default.  It  was  this  consideration,  principally,  w^hich 
induced  me  at  the  trial  to  entertain  the  opinion  which  I 
then  expressed  and  have  since  changed.  And  we  think 
that  if  the  principle  on  which  foreign  judgments  were  en- 
forced was  that  which  is  loosely  called  'comity,'  we  could 
hardly  decline  to  enforce  a  foreign  judgment  given  in  France 

1  Schibsby  v.  Westenholz,  L.  11.  6  j  mill,    8   Upper   Canada   Q.  B.   407  ; 
Q.  B.  155;  see,  also,  Warren  v.  Kings-  |  Burn  v.  Bletcher,  23  lb.  28. 

581 


g588  LAW  OF  JUDGMENTS.  [Cliap.  XXYII. 

against  a  resident  of  Great  Britain  under  circumstances 
hardly,  if  at  all,  distiugnisliablc  from  those  under  which 
we,  mutatis  mutandis,  might  give  judgment  against  a  resi- 
dent in  France. 

* '  Should  a  foreigner  bo  sued  under  the  provisions  of  the 
statute  referred  to,  and  then  come  to  the  courts  of  this  coun- 
try and  desire  to  be  discharged,  the  only  question  which  our 
courts  could  entertain  would  be,  whether  the  acts  of  the 
British  legislature,  rightly  construed,  gave  us  jurisdiction 
over  the  foreigner ;  for  we  must  obey  them.  But  if  judg- 
ment being  given  against  him  in  our  courts,  an  action  were 
brought  upon  it  in  the  courts  of  the  United  States  (where 
the  law  as  to  enforcing  foreign  judgments  is  the  same  as 
our  own),  a  further  question  would  be  open,  viz.  :  Not  only 
whether  the  British  legislature  had  given  the  English  courts 
jurisdiction  over  the  defendant,  but  whether  he  was  under 
any  obligation  which  the  American  courts  could  recognize 
to  submit  to  the  jurisdiction  thus  created.  This  is  pre- 
cisely the  question  which  we  have  now  to  determine  with 
regard  to  a  jurisdiction  assumed  by  the  French  jurispru- 
dence over  foreigners. 

"Again,  it  was  argued  before  us  that  foreign  judgments 
obtained  by  default,  where  the  citation  was  (as  in  the  pres- 
ent case)  by  an  artificial  mode  prescribed  by  the  laws  of  the 
country  in  which  the  judgment  was  given,  Avere  not  enforce- 
able in  this  country,  because  such  a  mode  of  citation  was 
contrary  to  natural  justice ;  and  if  this  were  so,  doubtless 
the  finding  of  the  jury  in  the  present  case  would  remove 
that  objection.  But  though  it  appears  by  the  report  of 
Buchanan  v.  Bucket'  (1  Camp.  G3),  that  Lord  Ellenborough 
in  the  hurry  of  nisi  2:)rius  at  first  used  expressions  to  this  ef- 
fect, yet  when  the  case  came  before  him  in  banco  (9  East. 
192),  he  entirely  abandoned  what  (with  all  deference  to  so 
great  an  authority)  we  cannot  regard  as  more  than  decla- 
mation, and  rested  his  judgment  on  the  ground  that  laws 
passed  by  our  country  were  not  obligatory  on  foreigners  not 
subject  to  their  jurisdiction.  '  Can,'  he  said,  'the  island  of 
Tobago  pass  a  law  to  bind  the  rights  of  the  whole  world  ? ' 

"The  question  we  have  now  to  answer  is  :  Can  the  empire 
of  France  pass  a  law  to  bind  the  Avhole  world  ?  Wo  admit, 
582 


Chap.  XXVII.]  OF  JUEISDICTION.  §588 

with  perfect  candor,  that  in  the  supposed  case  of  a  judg- 
ment obtained  in  this  country  against  a  foreigner  under  the 
Common  Law  Procedure  Act,  being  sued  on  in  a  court  of 
the  United  States,  the  question  for  the  court  of  the  United 
States  would  be,  Can  the  island  of  Great  Britain  pass  a  law 
to  bind  the  whole  world  ?  We  think  in  each  case  the  an- 
swer should  be,  No,  but  every  ^country  can  pass  laws  to 
bind  a  great  many  persons ;  and  therefore  the  further  ques- 
tion has  to  be  determined,  whether  the  defendant  in  the 
particular  suit  was  such  a  person  as  to  be  bound  by  the 
judgment  which  it  is  sought  to  enforce  ? 

'■'Now  on  this  we  think  some  things  are  quite  clear  on 
principle,  if  the  defendants  had  been  at  the  time  of  the 
judgment  subjects  of  the  country  whose  judgment  is  sought 
to  be  enforced  against  them.  Again,  if  the  defendants  had 
been,  at  the  time  when  the  suit  was  commenced,  resident  in 
the  country,  so  as  to  have  the  benefit  of  its  laws  protecting 
them,  or,  as  it  is  sometimes  expressed,  owing  temporary  al- 
legiance to  that  country,  we  think  that  its  laws  would  have 
bound  them. 

"If,  at  the  time  when  the  obligation  was  contracted,  the 
defendants  were  within  the  foreign  country,  but  left  it  before 
the  suit  was  instituted,  we  should  be  inclined  to  think  the 
laws  of  that  country  bound  them  ;  though  before  finally  de- 
ciding this,  we  should  like  to  hear  the  question  argued.  But 
every  one  of  those  suppositions  is  negatived  in  the  present 
case. 

"Again,  we  think  it  clear,  upon  principle,  that  if  a  per- 
son selected,  as  plaintiff,  the  tribunal  of  a  foreign  country 
as  the  one  in  which  he  Avould  sue,  he  could  not  afterward 
say  that  the  judgment  of  that  tribunal  was  not  binding  upon 
him. 

"In  the  case  of  General  Steam  Navigafion  Co.  v.  Gidllou 
(11  M.  &  W.  877,  894),  on  a  demurrer  to  a  plea,  Parke,  B., 
in  delivering  the  considered  judgment  of  the  Court  of  Ex- 
chequer, then  consisting  of  Lord  Abinger,  C.  B.,  Parke, 
Aldeson,  and  Gurney,  B.  B.,  thus  expresses  himself:  'The 
substance  of  the  plea  is,  that  the  cause  has  been  already  ad_ 
j'xidicated  upon,  in  a  competent  court,  against  the  plaintiffs, 
and  that  the  decision  is  binding  upon  them,  and  that  they 

583 


^588  LAW  OF  JUDGMENTS.  [Chap.  XXVII. 

ouglit  not  to  be  permitted  again  to  litigate  the  same  ques- 
tion. Such  a  plea  ought  to  have  had  a  proper  commence- 
ment and  conclusion.  It  becomes,  therefore,  unnecessary 
to  give  any  opinion  whether  the  pleas  are  bad  in  substance ; 
but  it  is  not  to  be  understood  that  we  feel  much  doubt  on 
that  question.  They  do  not  state  that  the  plaintiffs  Avere 
French  subjects,  or  resident,  or  even  present  in  Franco 
when  the  suit  began,  so  as  to  be  bound  by  reason  of  alle- 
giance or  temporary  presence  by  the  decision  of  a  French 
court ;  and  they  did  not  select  the  tribunal  and  sue  as 
plaintifls,  in  an}'  of  which  cases  the  determination  might 
have  possibly  bound  them.  They  Avere  mere  strangers,  avIio 
put  forward  the  negligence  of  the  defendant  as  an  answer  in 
an  adverse  suit  in  a  foreign  countr}-,  whose  laws  they  Avere 
under  no  obligation  to  obey.' 

"It  Avill  be  seen  from  this  that  those  very  learned  judges, 
besides  expressing  an  opinion  conformable  to  ours,  also  ex- 
pressed one  to  the  effect  that  the  plaintiffs  in  that  suit  did 
not  put  themselves  under  an  obligation  to  obey  the  foreign 
judgment,  merely  by  appearing  to  defend  themselves  against 
it.  On  the  other  hand,  in  Simjjsoii  v.  Fogo  (1  John.  &  H. 
18  ;  29  L.  J.  Ch.  G57  ;  1  Hem.  &  M.  195  ;  32  L.  J.  Ch.  249), 
Avhere  the  mortgagees  of  an  English  ship  had  come  into  tho 
courts  of  Louisiana  to  endeaA'or  to  preA'ent  the  sale  of  their 
ship,  seized  under  an  execution  against  the  mortgagors, 
and  tho  courts  of  Louisiana  decided  against  them,  the  Vice 
Chancellor  and  the  very  learned  counsel  avIio  argued  in  the 
case  seem  all  to  have  taken  it  for"  granted  that  the  decision 
of  the  court  of  Louisiana  would  have  bound  the  mortgagees, 
had  it  not  been  in  contemptuous  disregard  of  English  law. 
The  case  of  Geneyxd  Steam  Navigation  Co.  v.  Guillou  (11  M. 
&  W.  877),  was  not  referred  to,  and  therefore  cannot  be 
considered  as  dissented  from  ;  but  it  seems  clear  they  did 
agree  in  the  latter  part  of  the  opinion  they  expressed. 

"We  think  it  better  to  leave  this  question  open,  and  to 
express  no  opinion  as  to  the  effect  of  the  appearance  of  a 
defendant,  where  it  is  so  far  not  voluntary  that  he  only 
comes  in  to  try  to  save  some  property  in  the  hands  of  the 
foreign  tribunal.  But  we  must  observe  that  the  decision  in 
DeCofise  Drissac  v.  Bathbone  (G  H.  Sc  N..301;  30  L.  J.  Ex. 
584 


Chap.  XXVII.]  OP  JURISDICTION.  g588 

238)  is  an  authority  that,  where  the  defendant  voluntarily 
appears  and  takes  the  chance  of  a  judgment  in  his  favor,  he 
is  bound. 

"In  Douglas  v.  Forrest  (4  Bing.  703),  the  court,  in  deciding 
in  favor  of  a  party  suing  on  a  Scotch  judgment,  say  :  '  We 
confine  our  judgment  to  a  case  where  the  party  owed  alle- 
giance to  the  country  in  which  the  judgment  was  so  given 
against  him,  from  being  born  in  it,  and  by  the  law  of  which 
country  his  property  was,  at  the  time  those  judgments  were 
given,  protected.  The  debts  were  contracted  in  the  country 
in  which  the  judgments  were  given  while  the  debtor  resided 
in  it.'  Those  circumstances  are  all  negatived  here.  We 
should,  however,  point  out  that,  while  we  think  that  there 
may  be  other  grounds  for  holding  a  person  bound  by  the 
judgment  of  the  tribunal  of  a  foreign  country  than  those 
enumerated  in  Douglas  v.  Forrest,  we  doubt  very  much 
whether  the  possession  of  property  locally  situated  in  that 
country,  and  protected  by  its  laws,  does  afford  such  a 
ground.  It  should  rather  seem  that,  while  every  tribunal 
may  very  properly  execute  process  against  the  property 
within  its  jurisdiction,  the  existence  of  such  property, 
which  may  be  very  small,  affords  no  sufficient  ground  for 
imposing  on  the  foreign  owner  of  that  property  a  duty  or 
obligation  to  fulfill  the  judgment.  But  it  is  unnecessary  to 
decide  this,  as  the  defendants  had  in  this  case  no  property 
in  France. 

"We  think,  and  this  is  all  we  need  decide,  that  there  ex- 
isted nothing  in  the  present  case  imposing  on  the  defendants 
any  duty  to  obey  the  judgment  of  a  French  tribunal."^ 

The  decisions  in  the  United  States  upon  the  subject  of 
foreign  judgments  are  but  few.  The  law  on  that  subject 
must,  therefore,  be  regarded  as  not  well  settled.  So  far  as 
jurisdictional  inquiries  are  involved,  no  doubt  the  courts  in 
this  country  would  permit  a  party  against  whom  a  foreign 
judgment  was  sought  to  be  used,  to  avoid  its  effect  to  the 
same  extent  which  is  authorized  by  the  English  cases  ;  and 
that  no  person  would  be  held  bound  in  this  country  by  an 
adjudication  made  in  some  other  country,  unless  he  was  a 
resident  of,    or  submitted  himself   to   the  courts  of,   that 

1  Schibsby  v.  "VVestenliolz,   L.  R.  6Q.  B.  155. 

585 


gp8S-589  LAW  OP  JUDGMENTS.        [Chap.  XXYII. 

countiy.*  A  novel  case  was  recently  determined  by  Judge 
Woodruff,  of  the  Southern  District  of  New  York.  The 
plaintiff  had,  in  the  empire  of  France,  married  the  daughter 
of  the  defendant,  who  was  then  residing  in  that  country. 
Under  a  law  of  France  the  plaintiff  sued  the  defendant  in 
a  French  court,  and  obtained  a  judgment  that  the  former 
should  furnish  and  pay  the  latter  18,000  francs  per  year  for 
the  support  of  himself  and  his  child.  This  judgment  was 
based  upon  the  French  law,  which  obliges, fathers-in-law  to 
make  an  allowance  for  their  sons-in-law  when  the  latter  are 
in  need.  The  father-in-law  was  temporarily  residing  in 
France  when  the  judgment  was  rendered  against  him.  He 
prosecuted  an  appeal,  and  the  judgment  was  affirmed. 
Judge  Woodruff  sustained  a  demurrer  to  the  complaint, 
based  on  this  judgment.  He  seemed  to  sustain  the  demur- 
rer partly  on  the  ground  that  the  temporary  residence  in 
France  did  not  subject  the  parties  to  the  jurisdiction  of  the 
courts  of  that  country ;  partly  on  the  ground  that  the  judg- 
ment was  rendered  in  pursuance  of  local  laws  and  obliga- 
tions which  could  not  thus  be  made  binding  in  a  foreign 
country ;  and  partly  on  the  ground  that  foreign  judgments 
were  enforced  through  comity,  and  that  such  comity  forbids 
rather  than  requires  a  A'iolation  of  the  policy  of  our  own 
laws  and  a  violence  to  the  rights  of  our  own  citizens. - 

§  589.  Jurisdiction  of  Absentees. — The  English  courts, 
no  doubt,  are  not  disposed  to  disregard  a  judgment  ren- 
dered in  a  foreign  country,  merely  because  the  service  of 
process  was  constructive,  and  the  defendant  was,  at  the 
time,  beyond  the  jurisdiction  of  the  court.  It  must  be 
shown  that  the  defendant  was  not  domiciled  in  and  did  not 
owe  allegiance  to  the  nation  whose  courts  jn-oceeded  against 
him  in  his  absence ;  because,  if  he  did  owe  such  allegiance 
to  or  was  domiciled  in  the  country,  it  was  not  repugnant  to 
natural  justice  to  provide  some  means  of  compelling  him 


Bischoff  V.  AVethered,  9  Wall.  182;  |  Goddiird,  5i  Mo.  28  and  55  Me.  389  ; 


Bissell  V.  Briggs,  9  Mass.  4G2  ;  Mid- 
dlesex Bank  v.  Butman,  29  Me.  19  ; 
Burnhain  v.  Webster,  1  W.  &  M.  172  ; 
Story's  Conf .  Laws,  $  G08  ;  llankin  u.  I 

580 


Foster  v.  Glazner,  27  Ala.  391. 

-  De     Brimont    v.    Penuimau,    10 
Blatchf.  436. 


Cbap.  XXII.]  FRAUD.  §^589-591 

to  pay  his   debts  even  after  he   had   departed  from   the 
country.^ 

§  590.  Jurisdiction  of  Corporations. — The  members  of 
a  company  formed  iu  England  to  carry  on  business  in  a  for- 
eign country  are  bound  iu  respect  to  the  transactions  of  tliat 
company  by  the  h^ws  of  the  country  where  the  business  is 
carried  on.  If  a  statute  of  the  foreign  country  authorize 
the  company  to  be  sued  in  the  name  of  its  chairman,  a  judg- 
ment so  recovered  is  as  conclusive  on  the  members  of  the 
company  in  England  as  any  other  foreign  judgment ;  and 
cannot  be  avoided  by  showing  that  they  received  no  sum- 
mons and  had  no  notice  of  the  suit.^  To  a  suit  in  England, 
on  a  French  judgment,  the  defendant  pleaded  that  he  never 
was  a  resident  of  France  during  or  since  the  accrual  of  the 
cause  of  action,  nor  was  subject  to  the  laws  of  France,  nor 
served  with  process,  nor  did  he  have  any  notice  or  knowl- 
edge of  the  suit.  The  plaintiff,  in  reply,  stated  that  the  de- 
fendant was  member  of  a  company  in  France,  by  holding 
shares  therein  ;  that,  by  law  of  that  country,  it  was  neces- 
sary for  defendant  to  elect  a  domicile;  that  such  domicile 
was  selected  at  Paris ;  that  service  of  notice  was  left  at  such 
domicile  as  provided  by  the  laws  of  France.  This  replica- 
tion was  held  to  be  good,  on  the  ground  that  natural  justice 
was  not  violated  by  holding  a  man  bound  by  a  particular 
mode  of  notification,  to  which  he  had  agreed  to  submit.^ 

§  591.  Fraud. — Both  in  England  and  the  United  States, 
fraud  in  its  procurement  is  a  good  ground  on  which  to  avoid 
the  effect  of  a  foreign  judgment.^  A  foreign  judgment  may 
be  disregarded,  both  at  law  and  in  equity,  when  it  is  shown 
to  have  been  obtained  through  fraud.  But  because  the  plea 
of  fraud  is  a  good  defense  to  an  action  at  law,  on  such  judg- 


1  Douglas  V.  Foixest,  4  Bing.  6S6  ; 
Cowan  V.  Braidwood,  9  Dowl.  27.  The 
rule  is  the  same  in  Canada.  Gauthier 
V.  Blight,  5  U.  C.  C.  P.  122. 

2  Bank  of  Australasia  v.  Harding,  9 
C.  B.  661 ;  Same  v.  Nias,  16  Q.  B.  717 . 

3  Vallie  V.  Dumergue,  4  Exc.  2'JO. 


4  Keimers  v.  Druce,  23  Beav.  145 , 
Prices.  Dewhurst,  8  Sim.  279;  Lazier 
V.  Westcott,  26  N.  Y.  146;  Henderson 
r.  Henderson,  6  Q.  B.  288;  Fiankin  tj. 
Goddard,  54  Me.  28  and  55  Me.  389; 
Story's  Confl.  Lawf5,  Sec.  608. 

587 


§^591-592  LAW  OF  JUDGMENTS.         [Chap.  XXYII. 

ment  a  court  of  equity  will  not  interfere  with  the  action  at 
law,  but  will  leave  defendant  to  make  his  defense  there. ^ 

§  .592.     Difference  bet-ween  Judgments  as  a  cause  of 
Action  and  as  a  plea  in  Bar. — TVc  have  seen  that  a  for- 
eign judgment  can  have  no  extra-territorial  obligation,  if 
the   defendant  was  not  subject  to  the  jurisdiction  of  the 
CO  arts  of  the  country  wherein  it  was  rendered,  and  that  it  is 
in  all  cases  liable  to  bo  impeached  for  fraud  in  its  procure- 
ment.    Perhaps  two  other  questions  in  reference  to  this 
class  of  judgments,  could  not  be  mentioned  in  regard  to 
which  the  authorities  are  at  all  in  unison.     A  distinction  has 
been  made  between  the  effect  of  a  foreign  judgment  sought 
to  be  enforced  as  a  cause  of  action,  and  that  of  the  same 
judgment  produced  by  the  defendant  as  a  bar.     This  dis- 
tinction is  supported  by  the  judgment  of  Lord  Chief  Justice 
Eyre,  in  PJdlUpsw.  Hunter,  (2  H.  Black.  410),  in  which  he  said: 
"It  is  in  one  way  only,  that  the  sentence  or  judgment  of  the 
court  of  a  foreign  State  is  examinable  in  our  courts;  and. 
that  is,  when  the  party  who  claims  the  benefit  of  it  applies 
to  our  courts  to  enforce  it.     When  it  is  thus  voluntarily  sub- 
mitted to  our  jurisdiction,  we  treat  it,  not  as  obligatory, 
perhaps,  as  in  this  country  in  which  it  was  pronounced,  nor 
as  obligatory  to  the  extent  to  which  by  our  law  sentences 
and  judgments  are  obligatory;  not   as  conclusive  but  as 
matter  in  pais;  as  a  consideration  jjri?>ia  facie  sufficient  to 
raise  a  promise.     We  examine  it  as  we  do  all  other  consid- 
erations or  promises;  and  for  that  purpose  we  receive  evi- 
dence of  what  the  law  of  the  foreign  State  is,  and  whether 
the  judgment  is  warranted  by  that  law.     In  all  other  cases, 
we  give  entire  faith  and  credit  to  the  sentences  of  foreign 
courts,  and  consider  them  as  conclusive  upon  us.'"'     This 
opinion   so  far   as  it   treats  foreign   judgments  as   merely 
prima  facie  when  brought  forward  as  a  cause  of  action ;  but 
as  conclusive  when  called  in  question  incidentally  or  by  a 
plea  in  bar  (except  as  a  merger  of  a  cause  of  action),  is  sus- 
tained by  0,  large  number  of  English  and  American  cases.* 


1  Ochsenbein  v.  Paiielier,   L.  K.  8 
Ch.  Ap.  G95. 

2  See  also  Woodburne  v.  Plummer, 
1  Barn.  &  C.  C25. 

3  Walker  v.  Witter,  1  Doug.  1;  But- 

588 


trick  V.  Allen,  8  Mass.  237;  Galbraith 
V.  Neville,  5  East.  75;  Wood  v.  Gam- 
ble, 11  Gush.  8;  Williams  v.  Treston, 
3  J.  J.  M.  GOO;  Bigelow  on  EstoiDpel, 
p.  102. 


Cliap.  XXVII.]  DECKEE   OF   DISMISSAL.  ^593 

g  593.  Decree  of  Dismissal. — Another  clistiDction  has 
"been  made  by  which  a  decree  of  dismissal  has  been  treated 
as  more  conclusive  than  a  decree  sustaining  a  claim.  Tims 
Lord  Kames  (2  Karnes'  Equity,  p.  365  of  3d  Ed.)  says:  "A 
foreign  decree,  sustaining  the  claim,  is  not  one  of  those  uni- 
versal titles,  which  ought  to  be  made  effectual  everywhere. 
It  is  a  title  that  depends  on  the  authority  of  the  court  whence 
it  issued,  and  therefore  has  no  coercive  authority  extra  ierri- 
torium.  And  yet,  as  it  would  be  hard  to  oblige  the  joerson 
who  claims  on  a  decree  to  bring  a  new  action  against  his 
party  in  every  country  to  which  he  may  retire ;  therefore, 
common  utility,  as  well  as  regard  to  a  sister  court,  has  estab- 
lished a  rule  among  all  civilized  nations,  that  a  foreign  de- 
cree shall  be  put  in  execution,  unless  some  good  exception 
is  opposed  to  it  in  law  or  equity,  which  is  making  no  wider 
step  in  favor  of  the  decree  than  to  pronounce  it  just,  till  the 
contrary  be  proved. 

"A  foreign  decree,  which,  by  dismissing  the  claim,  affords 
an  exceptio  rei  judicata  against  it,  enjoys  a  more  extensive 
privilege.  We  not  only  presume  it  to  be  just,  but  will  not 
admit  of  any  evidence  of  its  being  unjust.  A  decree  dis- 
missing a  claim  may,  it  is  kue,  be  unjust,  as  well  as  a  de- 
cree sustaining  it.  But  they  differ  widely  in  one  capital 
point :  in  declining  to  give  redress  against  a  decree  dismiss- 
ing a  claim,  the  court  is  not  guilty  of  authorizing  injustice, 
even  supposing  the  decree  to  be  unjust;  the  utmost  that  can 
be  said  is,  that  the  court  forbears  to  interpose  in  behalf  of 
justice.  But  such  forbearance,  instead  of  being  faulty,  is 
highly  meritorious  in  every  case  where  private  justice 
clashes  with  public  utility.  The  casa  is  very  different  with 
respect  to  a  decree  of  the  other  kind ;  for  to  award  execu- 
tion upon  a  foreign  decree,  without  admitting  any  objection 
against  it,  would  be,  for  aught  the  court  can  know,  to  sup- 
port and  promote  injustice."  Though  the  distinction  here 
sought  to  be  established  between  foreign  decrees  is  sub- 
stantiall}^  like  that  pointed  out  in  PhlllliJS  v.  Hunter,  in  re- 
gard to  foreign  judgments,  it  does  not  seem  to  be  recognized 
in  any  of  the  reported  cases ;  and,  if  ever  so  recognized,  it 
must  undoubtedly  be  obliterated  by  the  recent  decisions  in 
the  highest  courts  of  England,  in  which  the  merits  and  jus- 


589 


§^593-595  LAW  OF  judgments.        [Chap.  XXVII. 

tice  of  the  sentences  of  the  courts  of  foreign  countries,  pro- 
nounced in  cases  of  which  those  courts  had  jurisdiction,  are 
no  longer  proper  subjects  of  inquiry. 

^  59dt.  Conclusive  in  England. — But  the  distinction 
made  in  Phillips  v.  Hunter  against  judgments  sought  to  be 
enforced  as  a  cause  of  action,  while  it  has  no  doubt  been 
generally  recognized  in  the  United  States,  is  now  entirely 
overthrown  in  England.  An  action  brought  in  that  country 
on  a  foreign  judgment,  cannot  be  defeated  by  an  examina- 
tion into  the  merits  of  the  judgment.  Conceding  that  the 
judgment  is  valid,  and  still  in  force  in  the  country  where  it 
was  rendered;  that  the  court  had  jurisdiction  over  the  cause 
and  the  parties,  and  that  the  judgment  is  free  from  the 
taint  of  fraud  in  its  procurement,  there  remains  no  ground 
for  avoiding  its  effect  as  a  cause  of  action,  unless  it  be 
that  the  court  of  the  foreign  country,  intentionally  disre- 
garded the  law  of  England,  in  a  case  where  the  rights  of  the 
parties  depended  on  a  proper  application  of  that  law.^ 

§  595.  Mistake  of  Foreign  Lavr. — The  recent  case  of 
Oodard  v.  Gray  (L.  R.  6  Q.  B.  139),  disposes  of  the  ques- 
tion, whether  a  mere  errpr  in  regard  to  English  law,  enter- 
ing into  a  judgment  rendered  in  a  foreign  country,  and 
occasioning  such  a  determination  as  could  not  have  been 
obtained  in  the  English  courts,  is  a  good  defense  to  an 
action  on  such  foreign  judgment  brought  in  the  English 
courts.  The  case  is  so  recent  and  so  authoritative  a  con- 
struction, not  only  of  the  law  necessarily  involved,  but  also 
of  the  whole  question  concerning  the  conclusive  nature  of 
foreign  adjudications,  that  we  shall  proceed  to  copy  into 
this  work  the  greater  portion  of  the  opinion  of  the  court: 
"  It  is  not  an  admitted  principle  of  the  law  of  nations,  that 
a  state  is  bound  to  enforce  within  its  .territories  the  judg- 
ment of  a  foreign  tribunal.  Several  of  the  continental 
nations  (including  France),  do  not  enforce  the  judgments 
of  other  countries,  unless  where  there  are  reciprocal  treaties 


1  Ferguson  v.  Mahon,  11  Ad.  <fe  El. 
179;  Henderson  v.  Henderson,  6  Ad. 
&  EK  N.  S.  288;  Castrique  v.  Imrie, 
L.E.  4H.  L.4;14;  Bank  of  Australasia 

.    590 


V.  Nias,  16  Q.  B.  717;  20  L.  J.  C.  P. 
281;  Same  v.  Harding,  9  C.  B.  C61; 
DeCosse  Brissac  c.  Eathbone,  6  H. 
&  N.  301;  30  L.  J.  Ex.  238. 


Chap.  XXYII.]    mlstjUie  of  foreign  law.  ^595 

to  that  eflfect.  But  in  England,  and  in  those  States 
which  ai-e  governed  by  the  common  law,  such  judgments 
are  enforced,  not  by  virtue  of  any  treaty,  nor  by  virtue  of 
any  statute,  but  upon  a  principle  very  well  stated  by  Parke 
B.,  in  JVilUams  v.  Jones  (13  M.  &  W.  G33) :  'Where  a 
court  of  competent  jurisdiction  has  adjudicated  a  certain 
sum  to  be  due  from  one  person  to  another,  a  legal  obliga- 
tion arises  to  pay  that  sum,  on  which  an  action  of  debt  to 
enforce  the  judgment  may  be  maintained.  It  is  in  this  way 
that  the  judgments  of  foreign  and  colonial  courts  are  en- 
forced.' And  taking  this  as  the  principle,  it  seems  to  fol- 
low, that  anything  which  negatives  the  existence  of  this 
legal  obligation,  or  excuses  the  defendant  from  the  per- 
formance of  it,  must  form  a  good  defense  to  the  action.  It 
must  be  open,  therefore,  to  the  defendant  to  show  tliat  the 
court  which  pronounced  the  judgment  had  not  jurisdiction 
to  pronounce  it,  either  because  they  exceeded  the  jurisdic- 
tion given  to  them  by  the  foreign  law,  or  because  he,  the 
defendant,  was  not  subject  to  that  jurisdiction;  and  so  far 
the  judgment  must  be  examinable.  Probably  the  defend- 
ant may  show  that  the  judgment  was  obtained  by  the  fraud 
of  the  plaintiff,  for  that  would  show  that  the  defendant  was 
excused  from  the  performance  of  an  obligation  thus  ob- 
tained; and  it  may  be,  that  where  the  foreign  court  has 
knowingly  and  perversely  disregarded  the  riglits  given  to 
an  English  subject  by  English  law,  that  forms  a  valid  ex- 
cuse for  disregarding  the  obligation  thus  imposed  on  him. 
"There  are  many  dicta  and  opinions  of  very  eminent 
lawyers,  tending  to  establish  that  the  defendant  in  an  action 
on  a  foreign  judgment  is  at  liberty  to  show  that  the  judg- 
ment was  founded  on  a  mistake,  and  that  the  judgment  is 
so  far  examinable.  In  Hoidditch  v.  DonegaU  (2  CI.  &  F. 
477),  Lord  Brougham  goes  so  far  as  to  say:  '  The  language 
of  the  opinions  on  one  side  has  been  so  strong,  that  we  are 
not  warranted  in  calling  it  merely  the  inclination  of  our 
lawyers;  it  is  their  decision  that  in  this  country  a  foreign 
judgment  is  only  prima  facie,  not  as  conclusive,  evidence  of 
a  debt.'  But  there  certainly  is  no  case  decided  on  such  a 
principle;  and  the  opinions  on  the  other  side  of  the  ques- 

591 


g595  LAW  OF  JUDGMENTS.  [CliaiD.  XXYII. 

tion  are  at  least  as  strong  as  those  to  whicli  Lord  Brougham 
refers, 

"Indeed,  it  is  difficult  to  understand  how  the  c(»mmon 
course  of  pleading  is  consistent  with  any  notion  that  the 
judgment  was  only  evidence.  If  that  were  so,  every  count 
on  a  foreign  judgment  must  be  demurrable  on  that  ground. 
The  mode  of  ])leading  shows  that  the  judgment  was  con- 
sidered, not  as  merely  prima  facie  evidence  of  that  cause  of 
action  for  which  the  judgment  was  given,  but  as  in  itself 
giving  rise,  at  least  prima  facie,  to  a  legal  obligation  to  obey 
that  judgment  and  pay  the  sum  adjudged.  This  may  seem 
a  technical  mode  of  dealing  with  the  question;  but  in  truth 
it  goes  to  the  root  of  the  matter.  For  if  the  judgment  were 
merely  considered  as  evidence  of  the  original  cause  of 
action,  it  must  be  open  to  meet  it  by  any  counter  evidence 
negativing  the  existence  of  the  original  cause  of  action. 

"  If,  on  the  other  hand,  there  is  a  prima  facie  obligation 
to  obey  the  judgment  of  a  tribunal  having  jurisdiction  over 
the  party  and  the  cause,  and  to  pay  the  sum  decreed,  the 
question  would  be,  whether  it  was  open  to  the  unsuccessful 
party  to  try  the  cause  over  again  in  a  court,  not  sitting  as 
a  court  of  appeal  from  that  which  gave  the  judgment.  It 
is  quite  clear  this  could  not  be  done  where  the  action  is 
brought  on  the  judgment  of  an  English  tribunal;  and,  on 
principle,  it  seems  the  same  rule  should  apply  where  it  is 
brought  on  that  of  a  foreign  tribunal.  But  there  still  re- 
mains a  question  which  has  never,  so  far  as  we  knoAV.  been 
expressly  decided  in  any  court. 

"It  is  broadly  laid  down,  by  the  very  learned  author  of 
Smith's  Leading  Cases,  in  the  original  note  to  Doe  v.  Oliver, 
that  'it  is  clear  that  if  the  judgment  appear  on  the  face  of 
the  proceedings  to  be  founded  on  a  mistaken  iwiiou  of  the 
English  law,'  it  would  not  be  conclusive.  For  this  he  cites 
Novelli  V.  Itossi  (2  B.  &  Ad.  757),  which  does  not  decide  that 
point,  and  no  other  authority;  but  the  great  learning  and 
general  accuracy  of  the  writer  makes  his  unsupported  opin- 
ion an  authority  of  weight;  and  accordingly  it  has  been 
treated  with  respect. 

"But  the  doctrine  as  laid  down  by  Mr.  Smith  does  ap- 
ply here;  and  we  must  express  our  opinion  on  it,  and  v>  e 

592 


Chap.    XXyil.]   MISTAKE   OF  FOREIGN  LAW.  §595 

think  it  cannot  he  supported,  unci  that  the  defendant  can  no 
more  set  up  as  an  excuse,  relieving  him  from  the  duty  of 
paying  the  amount  awarded  by  the  judgment  of  the  foreign 
tribunal  having  jurisdiction  over  him,  and  the  cause,  that 
the  judgment  proceeded  on  a  mistake  of  the  English  law, 
than  he  could  set  up  as  an  excuse  that  there  had  been  a 
mistake  as  to  the  law  of  some  third  country  incidentally  in- 
volved, or  as  to  any  other  question  of  fact. 

"It  can  make  no  difference  that  the  mistake  appears  on 
the  face  of  the  proceedings.  That,  no  doubt,  greatly  facili- 
tates the  proof  of  the  mistake;  but  if  the  principle  be  to 
inquire  whether  the  defendant  is  relieved  from  a  prima  facie 
duty  to  obey  the  judgment,  he  must  be  equally  relieved, 
whether  the  mistake  appears  on  the  face  of  the  proceedings 
or  is  to  be  proved  by  extraneous  evidence.  Nor  can  there 
be  any  difference  between  a  mistake  made  by  the  foreign 
tribunal  as  to  English  law,  and  any  other  mistake. 

"If,  indeed,  foreign  judgments  were  enforced  by  our 
courts  out  of  politeness  and  courtesy  to  the  tribunals  of 
other  countries,  one  could  understand  its  being  said  that 
though  our  courts  would  not  be  so  rude  as  to  inquire 
whether  the  foreign  court  had  made  a  mistake,  or  to  allow 
the  defendant  to  assert  that  it  had,  yet  if  the  foreign  court 
itself  admitted  its  blunder  they  would  not  then  act;  but  it 
is  quite  contrary  to  every  analogy  to  suppose  that  an  En- 
glish court  of  law  exercises  any  discretion  of  this  sort.  We 
enforce  a  legal  obligation,  and  we  admit  any  defense  which 
shows  that  there  is  no  legal  obligation  or  a  legal  excuse  for 
not  fulfilling  it;  but  in  no  case  that  we  know  of  is  it  ever 
said  that  a  defense  shall  be  admitted  if  it  is  easily  proved, 
and  reject  it  if  it  would  give  the  court  great  trouble  to  in- 
vestigate it.  Yet  on  what  principle  can  we  admit  as  a 
defense  that  there  is  a  mistake  of  English  law  apparent  on 
the  face  of  the  proceedings,  and  reject  a  defense  that  there 
was  a  mistake  of  Spanish  or  even  Scotch  law  apj)arent  in 
the  i)roceeding3,  or  that  there  was  a  mistake  of  English  law 
not  apparent  on  the  proceedings,  but  which  defendant  avers 
that  he  can  show  did  exist. 

"The  whole  law  was  much  considered  and  discussed  in 
Casirique  v.  Imrie  (L.  R.  4  H.  L.  414),  where  the  French 
(38)  593 


§§595-596  LAW  OP  judgments.        [Chap.  XXYII. 

tribunal  had  a  mistake  as  to  the  English  law,  and  \inder 
that  mistake  had  decreed  the  sale  of  the  defendant's  ship. 
The  decision  of  the  House  of  Lords  was,  that  the  defend- 
ant's title  derived  under  that  sale  was  good,  notwithstanding 
that  mistake:  Lord  Colonsay  pithily  saying,  'It  appears 
to  me  that  we  cannot  enter  into  an  inquiry  as  to  whether  the 
French  courts  proceeded  correctly,  either  as  to  their  own 
course  of  procedure  or  their  own  law,  nor  whether  under 
the  circumstances  they  took  the  proper  means  of  satisfying 
themselves  with  respect  to  the  view  they  took  of  English 
law.  Nor  can  we  inquire  whether  they  were  right  in  their 
views  of  the  English  law.  The  question  is,  whether  under 
the  circumstances,  of  the  case,  dealing  Avith  it  fairly,  the 
original  tribunal  did  proceed  against  the  ship,  and  did  order 
the  sale  of  the  ship  ?'  "^ 

§  590.  Rule  of  the  American  Cases. — The  majority  of  the 
reported  American  cases  were  decided  prior  to  those  En- 
glish decisions  wdiich  have  resulted  in  enhancing  the  dignity 
of  foreign  judgments  in  that  country.  It  will  accordingly 
be  found  that  the  greater  number  of  the  American  courts 
have  declared  in  favor  of  the  law  as  it  is  stated  in  PhilUps  v. 
Hunter,  and  by  which  the  foreign  judgment  is  regarded  as 
examinable  on  the  merits.-  Thus,  one  American  judge  has 
said  that  he  would  allow  the  prima  facie  obligation  of  a 
foreign  judgment  to  be  rebutted  by  showing  that  the  merits 
of  the  claim  now  in  controversy  were  not  in  fact  considered 
in  the  former  suit,  owing  to  some  accident,  mistake  or  agree- 
ment of  the  parties,  or  owing  to  any  other  sufficient  excuse; 
that  he  would  allow  the  prima  facie  obligation  to  be  rebut- 
ted most  easily  when  the  judgment  proceeded  from  the 
courts  of  a  barbarous  or  semi-barbarous  nation  acting  on 
no  established  principles  of  jurisprudence,  and  would  idso 
discriminate  in  favor  of  persons  who  had  not  willingly  re- 
sorted to  the  courts  of  the  foreign  country  and  against  those 


1  See  also  Scott  v.  Pilkington,  2 
Best.  &  S.  11. 

2 See  Story.'s  Conflict  Laws,  §  COS; 
Bissell  V.  Biiggs,  'J  Mass.  4G1;  Bart- 
Icttu.  Kuight,  1  Mass.  400;  Buttrick 
u.  Allcu,  S  Mass.  273;  Jordan  v.  Rob- 

594 


inson,  3  Shepl.  1G7;  Pclton  r).  Plai- 
ner, 13  Ohio,  209.  In  Canada,  the 
effect  of  foreign  judgment  is  by  stat- 
ute, declared  to  be  prima  facie  only. 
Manning  v.  Thompson,  17  C.  P.  (U. 
C.)  GOG. 


Chap.  XXVII.]  ARGUMENTS.  .  §§590-597 

persons  who  had  voluntarily  submitted  themselves  to  such 
courts.^ 

§  597.  Arguments  for  conclusive  effect  of  foreign  judg- 
ment.— The  considerations  which  liave  influenced  the  ad- 
judications in  the  English  courts  will,  no  doubt,  make 
themselves  felt  in  America.  No  prediction  in  regard  to 
futuie  decisions  is  more  likely  to  be  realized  than  that  our 
courts  will  in  time  place  foreign  judgments  on  the  same 
footing  which  they  now  occupy  in  the  mother  country.  In- 
deed, the  two  great  American  jurists.  Judges  Kent  and 
Stoky,  at  an  early  day,  advanced  most  satisfactory  reasons 
in  favor  of  the  conclusiveness  of  foreign  judgments.  The 
latter,  in  his  Conflict  of  Laws  (§  607),  has  ably  pointed  out 
the  difficulties  involved  in  the  law  of  foreign  judgments,  as 
it  was  then  understood.  The  former,  in  pronouncing  judg- 
ment, in  the  year  1811,  in  the  case  of  Taylor  v.  Boyden,  (8 
Johns.  173),  said:  "To  try  over  again,  as  of  course,  every 
matter  of  fact  which  had  been  dul}^  decided  by  a  competent 
tribunal,  would  be  disregarding  the  comity  which  we  justly 
owe  to  the  courts  of  other  States,  and  would  be  carrying  the 
doctrine  of  re -examination  to  an  oppressive  extent.  It 
would  be  the  same  as  granting  a  new  trial  in  every  case, 
and  upon  every  question  of  fact.  Suppose  a  recovery  in 
another  State,  or  in  any  foreign  court,  in  an  action  for  a 
tort,  as  for  an  assault  and  battery,  false  imprisonment, 
slander,  etc.,  and  the  defendant  was  duly  summoned  and 
appeared  and  made  his  defense,  and  the  trial  was  conducted 
orderly  and  properly,  according  to  the  rules  of  a  civilized 
jurisprudence,  is  every  such  case  to  be  tried  again  here  on 
the  merits?  I  much  doubt  whether  the  rule  can  ever  go  to 
this  length.  The  general  language  of  the  books  is  that  the 
defendant  must  impeach  the  judgment,  by  showing  affirma-- 
tively  that  it  was  unjust,  by  being  irregularly  or  unfairly 
procured."  The  decisions  subsequently  made  in  the  same 
State  kept  pace  with  the  change  of  opinion  going  on  in  En- 
gland,^ until  in  the  case  of  Lazier  v.  Westcott  (26  N.  Y.  146), 


'  Burnham  v.  "Webster,  1  W.  &  M. 
172. 


-  Monroe  v.  Douglas,  4  Sand.  Cb. 
126;  Cummings  v.  Banks,  2  Barb. 
601. 

595 


§§507-G00 


LA^Y  or  JUDGMENTS.  [Chap.  XXVIT. 


the  most  advanced  position  was  attained  and  the  rule  was 
broadly  laid  down,  that  "  tlie  same  principles  and  decisions 
wliich  wo  have  made  as  to  judgments  from  the  courts  of 
other  States  of  the  Union,  should  be  applied  to  foreign 
judgments."  Other  American  cases  sustain  substantially 
the  same  view,  except  that  they  include  "mistake"  as  one 
of  the  grounds  for  ai^oiding  a  foreign  judgment,  without 
showing  what  or  whose  mistake  it  is  that  may  be  emploj^ed 
for  that  purpose.'  In  a  recent  case  in  New  York,  it  was 
held  that  a  foreign  judgment  had  the  same  effect,  in  that 
State,  as  evidence  against  an  indemnitor,  and  in  favor  of  the 
person  against  whom  the  foreign  judgment  was  recovered 
as  though  it  were  a  domestic  judgment." 

^  598.  Foreign  Decree. — The  English  courts  in  addition 
to  sustaining  the  judgments  of  foreign  courts  as  considera- 
tions for  actions  of  assumpsit,  and  as  pleas  in  bar,  also 
recognize  the  decrees  in  equity  made  in  foreign  tribunals; 
and  a  bill  to  carry  such  a  decree  into  effect  may  be  sus- 
tained in  the  English  courts.''  Such  a  decree  will  also  sus- 
tain an  action  brought  to  recover  a  sum  ascertained  by  it  to 
be  due  from  one  party  to  the  other.* 

g  599.  Decrees  discharging  Debtors. — It  is  a  general 
rule  that  a  debt  discharged  by  the  laws  of  the  country  where 
it  is  created,  is  discharged  in  every  other  country/'  and 
that  a  debt  discharged  by  the  law  of  any  country,  other 
than  that  in  which  it  was  created,  continues  in  full  force 
beyond  the  country  whore  the  decree  of  discharge  was  en- 
tered." 

g  600.  Control  of  Equity  over  Rights  Secured  in  For- 
eign Courts. — As  a  general  rule  every  creditor  may  pursue 
liis  debtor  and  his  debtor's  property  into  any  foreign  juris- 


^  Rankin  v.  Goddard,  55  Llaine, 
389;  Low  v.  Mussy,  44  Verm.  393; 
Silver  Lake  Bank  v.  Harding,  5  Ham. 
545. 

2  Konitzky  v.  Meyer,  40  N.  Y.  571. 
Martin  u.   Nicliolls,  3    Sim.    458; 
noulditcli  V.  Donegale,  8  Bligh,  N.  S. 
iHenlcy  v.  Soper,  8  B.  &  C.  16. 
59G 


5 Ellis  V.  McHenry,  L.  E.  6  C.  P. 
228;  citing  Phillips  v.  Ep-e,  L.  E.  G 
Q.  B.  1,  28;  Gardnier  v.  Houghton,  2 
B.  &  S.  743. 

6 Ellis  V.  McHenry.  L.  E.  G  C.  P. 
228;  citing  Lewis  v.  Owen,  4  B.  & 
Aid.  654;  Phillips  v.  Allen,  8  B.  &  C. 
477;  Bartleyu.  Hodges,  IB.  &  S.  375. 


Chap.  XXVII.]         CONFEDERATE  STATES.  §gG00-G04 

diction  in  which  he  or  it  may  be  found,  and  may  avail  him- 
self of  all  the  legal  remedies  which  the  courts  of  the  foreign 
State  are  willing  to  afford  him.  If,  for  instance,  a  ship  be- 
longing in  England  be  taken  to  the  United  States,  and  a 
creditor  of  the  owner,  residing  in  England,  commence  pro- 
ceedings in  the  United  States  against  the  vessel,  whereby 
the  creditor  secured  advantages  which  he  could  not  have 
obtained  at  home,  the  courts  of  equity  in  England  will  not 
compel  him  to  yield  up  the  advantages  thus  gained.  ^ 

2  601.  Interested  Tribunal. — In  Encrland  it  has  been 
held  that  the  judgment  of  a  foreign  tribunal  composed  of 
persons  interested  in  the  property  in  dispute,  who  have 
decided  for  themselves  and  in  their  own  favor,  should  be 
disregarded.  ^ 

§  602.  Appeal. — The  pendency  of  an  appeal,  taken  from 
a  foreign  judgment,  is  no  bar  to  an  action  on  such  judgment, 
though,  perhaps,  it  may  afford  sufficient  ground  to  justify 
the  court  wherein  the  action  is  brought  in  interposing  to 
prevent  a  possible  abuse  of  its  process.  ^ 

§  603.     Must  be  Supported   by  a   Complaint. — In  the 

absence  of  proof  to  the  contrary,  it  will  be  presumed  that 
the  courts  of  foreign  nations  are  not  authorized  to  act  with- 
out some  written  statement  of  a  cause  of  action  being  made. 
Therefore,  in  California,  a  record  of  a  foreign  court  will  be 
disregarded  unless  it  shows  the  allegations  of  fact  on  which 
the  court  acted  in  rendering  judgment.* 

§  604.   Judgments  of  Courts  of  the  Confederate  States. 

In  some  of  the  States  of  the  late  Southern  Confederacy  a 
strong  disposition  has  been  manifested  to  entirely  disregard 
the  judicial  proceedings  of  courts  acting  under  the  confed- 
erate authority,  and  within  territory  not  under  the  control  of 
the  federal  government.  The  Supreme  Court  of  Alabama, 
speaking  upon  this  subject,  said:  "The  judgment  was 
rendered  on  September  12th,  1863.     It  is  known  to  the 


1  Liverpool  Marine   Credit  Co.   v. 
Hunter,  L.  R.,  3  Ch.  A.p.  4G9. 
2 Price  V.  Dewhurst,  8  Sim.  279. 


3 Scott  V.  Pilkington,  2  Best.  &  S. 
41. 
*  Young  V.  Eosenbaum,  39  Cal.  646. 


597 


§G04  LA\^  OF  JUDGMENTS.  [Chap.  XXVII. 

court  as  a  part  of  the  judicial  history  of  the  State,  that 
the  court  in  which  this  judgment  was  rendered,  constituted 
a  portion  of  '  one  of  the  departments  of  a  government  es- 
tablished in  hostility  to  the  constitution  of  the  United 
States.'  It  has  been  settled  that  the  acts  of  the  legislature 
of  such  a  government  are  invalid.  If  this  is  admitted, 
and  it  seems  to  me  it  cannot  be  denied,  it  cannot  well  be 
conceived  how  the  judgments  of  such  a  government  can 
be  better  or  more  valid  than  its  laws.  The  reasons  which 
invalidate  the  one,  assail  the  other  also.  Both  are  parts  of 
a  whole;  and  if  the  whole  is  bad,  as  a  general  principle,  the 
parts  cannot  be  good.'"  The  question  received  further 
judicial  consideration  in  the  same  State.  The  final  con- 
clusion reached  was  that  judgments  rendered  during  the 
rebellion  by  courts  acting  by  virtue  of  powers  granted 
by  or  exercised  in  subordination  to  the  government  of  the 
Confederate  States,  should  not  be  entirely  disregarded. 
Neither  were  such  judgments  to  be  received  with  the  re- 
spect accorded  to  domestic  judgments.  They  were  to  be 
allowed  about  the  same  effect  as  a  foreign  judgment, 
namely,  they  were  to  be  received  as  prima  facie  evidence, 
and  carried  into  effect  unless  some  reason  was  shown 
why  they  ought  to  be  ignored.^  In  Arkansas  the  consti- 
tution of  the  State  adopted  after  the  close  of  the  rebellion, 
provided  "that  all  the  action  of  the  State  under  authority 
of  the  convention  which  assembled  in  Little  Eock,  on  the 
fourth  day  of  March,  18G1,  of  its  ordinances,  or  its  con- 
stitution, whether  legislative,  executive,  judicial  or  mili- 
tary, was,  and  is,  hereby  declared  null  and  void."  The 
Supreme  Court  of  the  State  has  on  several  occasions  de- 
termined that  courts  acting  during  the  rebellion  had  no 
authority  to  compel  defendants  to  appear  before  them; 
and  therefore  that  judgments  based  on  service  of  sum- 
mons on  such  defendants  were  therefore  void.^  But  the 
majority  of  the  decisions  on  the  subject  shows  that  judg- 


1  Ray  V.  Thompson,  43  Ala.  454, 
'  Martin  V.  Hewitt,  44  Ala.  418,-  Bibb 
V.  Averj',  45  Ala.  G91;  Mosely  v.  Tut- 
liill,  45  Ala.  G21, 650.    See  also  Petty- 

598 


wit  V.  Kellogg,  1  Cinn.  17  ;  Steere  v. 
Tenney,  50  N.  H.  461. 

sPenn  v.  Tollison,  26  Ark.  545; 
Thompson  v.  Mankin,  26  Ark.  586; 
Timms  v.  Grace,  26  Ark.,  598. 


Chap.  XXVII.]  CONFEDERATE   STATES.  '^004- 

ments  and  decrees  rendered  in  the  rebellions  States 
during  the  rebellion,  are,  unless  connected  with  proceed- 
ings or  purposes,  involving  an  attack  on  the  federal  gov- 
ernment, to  be  regarded  as  valid.  If  the  tribunal  in 
which  judgment  was  rendered  was  created  and  acting 
before  the  State  became  involved  in  secession  and  rebel- 
lion, its  authority  continued,  because  the  ordinances  of 
secession,  and  the  governments  set  up  under  them,  were 
all  invalid;  and  it  was  not  possible  through  the  enactment 
of  void  laws  to  destroy  a  pre-existing  legal  jurisdiction.^ 
But  courts  created  by  acts  of  the  Confederate  Congress 
are  regarded  as  never  having  any  judicial  authority.  Thus, 
w^hen  several  defendants  sought  to  shield  themselves  in 
an  action  for  malicious  imprisonment,  by  showing  that 
they  acted  as  officers  of  a  court  known  as  the  "District 
Court  of  the  Confederate  States  of  America  for  the 
Northern  District  of  Alabama,"  the  Supreme  Court  of  the 
United  States  held,  as  follows:  "The  act  of  the  Confed- 
erate Congress,  creating  the  tribunal  in  question,  was 
void.  It  was  as  if  it  were  not.  The  court  was  a  nullity, 
and  could  exercise  no  rightful  jurisdiction.  The  forms 
of  law  with  which  it  clothed  its  proceedings  gave  no  pro- 
tection to  those  who,  assuming  tO  be  its  officers,  were 
the  instruments  by  which  it  acted.""  But  judgments 
rendered  in  the  various  State  courts  during  the  rebellion, 
have  generally  been  regarded  as  valid,  unless  tainted  with 
proceedings  or  in  furtherance  of  objects  designed  to  give 
aid  and  comfort  to  the  Confederate  States  government. 
But  the  effect  of  such  judgment  can  in  no  case  extend  to 
persons  who  were  residing  in  those  parts  of  the  United 
States  not  involved  in  the  rebellion.^  The  extent  to 
which  proceedings  had  in  the  several  States  during  the 
rebellion,  will  be  recognized  and  enforced,  by  the  tri- 
bunals of  the  federal  government,  are  thus  stated  in  a 
recent  decision:  "  We  admit  that  the  acts  of  the  several 
States  in  their  individual  capacities,  and  of  their  different 


1  White   V.    Cannon,    6   Wall.  443;       =>  Cyyjg^.  y_  Terrill,  8  Am.  L.  Eeg. 

100;  Livingston  v.  Jordan,  10  Am.  L. 
Eeg.  53;  French  v.  Tomlin,  10  Am.L. 


Pepin  V.  Lachenmeyer,  -45  N.  Y.  27 
^  Hickman  v.  Jones,  9  Wall.  197. 


Eeg.  642. 


K 


09 


g§G0-l-G05  LAW  OF  JUDGMENTS.  [Cliap.  XXVII. 

departments  of  government,  executive,  judicial,  and  leg- 
islative, during  tlie  war,  so  far  as  they  did  not  impair  or 
tend  to  impair  the  supremacy  of  the  national  authority, 
or  the  just  rights  of  citizens  under  the  constitution,  are, 
in  general,  to  be  treated  as  valid  and  binding.  The  ex- 
istence of  a  state  of  insurrection  and  war  did  not  loosen 
the  bonds  of  society,  or  do  away  with  civil  government, 
or  the  regular  administration  of  the  laws.  Order  was  to 
be  preserved,  police  regulations  maintained,  crimes  pros- 
ecuted, property  protected,  contracts  enforced,  marriages 
celebrated,  estates  settled,  and  the  transfer  and  descent  of 
property  regulated  precisely  as  in  times  of  peace.  No  one 
that  we  are  aware  of  seriously  questions  the  validity  of  judi- 
cial or  legislative  acts  in  the  insurrectionary  States  touching 
these  and  kindred  subjects,  where  they  were  not  hostile  in 
their  purpose  or  mode  of  enforcement  to  the  authority  of 
the  national  government,  and  did  not  impair  the  rights  of 
citizens  under  the  constitution. "^  The  judicial  proceed- 
ings which  were  before  the  court  and  occasioned  the  use 
of  the  language  embraced  in  the  foregoing  quotation, 
were  the  proceedings  of  a  probate  court  of  the  State  of 
Alabama.  The  proceedings  were  sustained,  except  so  far 
as  they  approved  an  investment  in  confederate  bonds,  and 
directed  a  payment  to  the  legatees  on  those  bonds.  The 
action  of  the  court  "in  this  respect,  was  an  absolute  nul- 
lity, and  can  afford  no  protection  to  the  executor  in  the 
courts  of  the  United  States. 

§  GO-l."  Judgments  rendered  in  the  District  of  Colum- 
bia, have  been  considered  as  not  within  the  provisions  of 
the  constitution  and  laws  of  the  United  States,  providing 
for  the  effect  which  the  courts  of  one  State  must  give  to 
the  judgments  of  other  States.  Judgments  rendered  in 
this  district  have,  therefore,  been  treated  as  foreign  judg- 
ments. 2 

§  G05.  Are  Not  Records. — In  two  respects  foreign  judg- 
ments  are,   by  a  concurrence  of   the   authorities,  treated 


1  Horn  V  Lockliart,  17  Wall.  580. 

600 


-  Draper's  Ex.  v.  Gorman,  8  Leigh, 

G28. 


Chap.  XXVII.]  FOREIGN  PEOBATE.  §g605-G0oa 

differently  from  judgments  of  other  States  of  this  Union. 
Though  proceeding  from  superior  courts  of  general  juris- 
diction, the;j  are  not  records,  and  cannot  be  declared  on  as 
S*ich.  The  actions  Ijrought  upon  them  must,  therefore,  be 
in  assumpsit.  ^  Judge  Story,  in  his  Conflict  of  Laws  (sec. 
599"),  in  commenting  upon  the  opinion  of  Lord  Chief  Jus- 
tice Eyre  in  Phillips  v.  Hunter,  says:  "It  would  seem  a 
natural  result  of  that  view,  that  if  a  suit  was  brought  for 
the  same  cause  of  action,  in  an  English  court,  which  had 
already  been  decided  in  favor  of  either  party  in  a  foreign 
court  of  competent  jurisdiction,  and  was  final  and  conclusive 
there,  that  judgment  might  be  well  pleaded  in  bar  of  the 
new  suit  upon  the  original  cause  of  action,  and  would,  if 
honajide,  be  conclusive."  If  there  was  ever  any  reason  why, 
in  order  to  be  consistent  with  themselves,  the  courts  should 
hold  that  a  foreign  judgment  was  operative  as  a  merger  of 
the  original  cause  of  action,  that  reason  has  certainly  be- 
come more  imperative  since  the  dignity  and  importance  of 
those  judgments  have  been  so  recognized  and  enforced  by 
the  latest  adjudications  of  courts  of  last  resort  in  England 
and  in  this  country.  While  a  defendant,  who  succeeded  in 
defeating  a  claim  at  law  or  in  equity  in  the  courts  of  any 
foreign  country,  could  always  avail  himself,  in  the  common 
law  courts,  of  this  adjudication  in  his  favor,  as  a  complete 
plea  in  bar  to  another  action  involving  the  same  demand  ; 
and  while  under  the  most  recent  decision  the  principle  of 
res  judicata  is  enforced  in  favor  of  the  plaintiff  as  well  as  of 
the  defendant  in  a  foreign  judgment,  yet  the  law  of  merger 
has  never  been  applied  against  the  plaintiff  in  such  a  judg- 
ment, and  he  is,  both  in  England  and  in  America,  unques- 
tionably entitled  to  disregard  the  judgment  in  his  favor,  and 
sue  upon  the  original  cause  of  action. ^ 

§  605*.     Foreign  Probate.  —  The  law  of  the  domicile  of 
the  deceased  governs  the  succession  of  his  personal  prop- 


1  Harris  u.  Saunders,  4  B.  &  C.  411; 
Buttrick  v.  Allen,  8  Mass.  273;  Mc- 
Farlane  v.  Derbishire,  8  (Upper  Ca- 
nada), Q.  B.  12;  Gooding  v.  Hing- 
ston,  20  Mich.  439. 


2  See  §  220  of  this  book  ;  Story's 
Confl.  Laws.  Sec.  599^ ;  Fergus  -;. 
Wardlaw,  3  Kerr  (New  Brunswick), 
665. 

GOl 


§605a  LAW  OF  JUDGMENTS.        [Chap.  XXYII. 

erty.  A  decree  of  a  foreign  court  of  probate,  declaring  a 
claimant  to  be  the  natural  son  and  heir  of  a  person  who 
died  within  the  jurisdiction  of  the  court,  is  conclusive  as  an 
adjudication  of  the  same  question  when  it  is  brought  in  is- 
sue in  another  country  in  connection  with  the  personal  prop- 
erty of  the  deceased  in  the  last  named  country. 

'Doslioui  V.  Crispiii,  L,  E.  1  E,  &  J,  App.  301;  S.C.35  L.  J.  R.  (N.  S.)  129, 
602 


Chap.  XXYIII.]        JUDGMENTS  IN  EEM.  ^603 


CHAPTER  XXYIII. 

JUDGMENTS  IN  EEM. 

§606.  Definition  ot. 

§  607.  Different  Proceedings  in  Eem. 

§  60S.  Probates  of  Wills  and  Grants  of  Administration. 

§  COO.  Decree  of  Sale. 

§  610.  Marriage  and  Divorce. 

§611.  Jurisdiction. 

§  612.  How  Avoided,  if  fr9m  Foreign  Court. 

PART  II.— OF  JUDGMENTS  AND  DECEEES  IN  ADMIEALTY. 

§  613.  General  Nature  of. 

§  614.  Jurisdiction. 

§  615.  Efi'ect  as  Jtes  Judicata. 

§  616.  Sentence  of  Acquittal. 

§  617.  Effected  as  lies  Judicata  limited  to  Persons  interested  in  the  Res. 

%  618.  Grounds  of  Sentence  must  Appear. 

§  606.  Definition. — We  come  now  to  the  consideration 
of  a  class  of  judgments,  very  well  understood,  but  quite 
difficult  to  describe.  A  judgment  in  rem  was,  with  some 
diffidence,  defined  "to  be  the  judgment  of  a  court  of  ex- 
clusive, Oi?-at  least  peculiar,  jurisdiction,  declaratory  either 
of  the  nature  and  condition  of  some  particular  thing,  or  of 
the  condition  and  status  of  some  particular  person."^  Ac- 
cording to  the  views  expressed  in  the  Supreme  Court  of 
Vermont,  "A  judgment  in  rem  1  understand  to  be  an  adju- 
dication, pronounced  upon  the  status  of  some  particular  sub- 
ject matter,  by  a  tribunal  having  competent  authority  for 
that  purpose.  It  differs  from  a  judgment  in  personam  in 
this :  that  the  latter  judgment  is,  in  form,  as  well  as  sub- 
stance, between  the  parties  claiming  the  right ;  and  that  it 
is  so,  inter  partes  appears  by  the  record  itself.  A  judgment 
in  rem  is  founded  on  a  proceeding  instituted,  not  against 
the  person,  as  such,  but  against  or  upon  the  thing  or  sub- 
ject matter  itself  whose  state  or  condition  is  to  be  deter- 
mined.    It  is  a  proceeding  to  determine  the  state  or  condi- 

1  Ph.  Ev.  Vol.  2,  p,  5. 

603 


§G06  LAW  OF  JUDGMEXTS.       [Cliaii.  XXVIII. 

tion  of  the  thing  itself ;  and  the  judgment  is  a  solemn  de- 
claration of  the  status  of  the  thing,  and  it  ipso  facto  renders 
it  what  it  declares  it  to  be."'  In  a  case  before  Chief  Jus- 
tice Marshall,  he  undertook  to  point  out  the  distinguishing 
characteristics  of  judgment  in  rem,  and,  in  so  doing,  said: 
"  What  is  the  nature  of  a  proceeding  in  rem?  And  in  what 
does  its  specific  difference  from  an  ordinary  action  consist? 
Is  every  action  in  which  a  specific  article  is  demanded,  a 
proceeding  in  rem  ?  If  it  were,  a  Avrit  of  right  which  de- 
mands lands,  of  detinue  which  demands  a  personal  chattel, 
would  be  a  proceeding  i)i  rem,  to  which  all  the  world  would 
be  parties,  and  by  which  the  rights  of  all  the  world  would 
be  bound.  But  this,  all  know  is  not  the  law.  What  then 
is  the  rule  by  which  cases  of  this  description  are  to  be 
ascertained  ? 

' '  I  have  always  understood  that  wdiere  the  process  is  to 
be  served  on  the  thing  itself,  and  where  the  mere  posses- 
sion of  the  thing  itself,  by  the  service  of  the  process,  and 
making  proclamation,  authorizes  the  court  to  decide  upon 
it  without  notice  to  any  individual  whatever,  it  is  a  pro- 
ceeding in  rem,  to  which  all  the  world  are  parties.  The 
rule  is  one  of  convenience  and  of  necessity.  In  cases  to 
which  it  applies,  it  would  often  be  impossible  to  ascertain 
the  persons  whose  property  is  proceeded  against,  and  it  is 
presumable,  that  the  person  whose  property  is  seized,  is 
either  himself  attentive  to  it,  or  has  placed  it  in  the  care  of 
some  person  who  has  the  power,  and  whose  duty  it  is  to 
represent  him  and  assert  his  claim.  Such  claim  may  be 
asserted;  but  the  jurisdiction  of  the  court  does  not  depend 
on  its  assertion.  The  claimant  is  a  party  whether  he  speaks 
or  is  silent,  whether  he  asserts  his  claim  or  abandons  it."^ 

But  perhaps  the  most  correct,  as  well  as  the  most  con- 
cise definition  anywhere  given  of  a  judgment  in  rem,  is  that 
to  be  found  in  Smith's  Loading  Cases,  viz.  :  that  "it  is  an 
adjudication  iipon  the  status  of  some  particular  subject 
matter  by  a  tribunal  having  competent  authority  for  that 
purpose,"  depending  for  its  effect  on  this  principle,  that  it 

1  Woodruff  V.  Taylor,  20  Verm.  G5. 
-  Maukiu  I'.Cliaudler  &  Co.,  2  Brock. 
125. 

604 


Chap.  XXVIII.]  JUDGMENTS  IN   EEM.  §G06 

is  "a  solemn  declaration  proceeding  from  an  accredited 
quarter,  concerning  the  status  of  the  thing  adjudicated 
upon,  which  very  declaration  operates  accordingly  upon  the 
status  of  the  thing  adjudicated  upon,  and,  ipso  facto,  renders  it 
such  as  it  is  thereby  declared  to  be."^ 

But  from  none  of  these  descriptions  can  a  complete  and 
correct  idea  of  the  class  now  known  as  "judgment  in  rem'"' 
be  obtained.  The  delfinition  first  quoted  was  particularly 
inaccurate,  in  asserting  that  judgments  of  this  class  must 
proceed  from  ' '  a  court  of  exclusive,  or  at  least  peculiar, 
jurisdiction."  For,  in  truth,  all  kinds  and  classes  of  courts 
may  proceed  in  rem  whenever  the  law  authorizes  them  to 
do  so;  and  a  judgment  resulting  from  such  proceeding  is 
equally  effective,  whether  the  court  wherein  it  was  pro- 
nounced was  of  general  or  of  sjDecial,  of  superior  or  of  infe- 
rior, of  concurrent  or  of  exclusive,  jurisdiction.  The  de- 
scription given  by  Chief  Justice  Marshall  places  too  much 
stress  upon  the  idea,  that  the  thing  on  which  the  judgment 
operates  should  be  taken  into  possession  on  or  by  the 
service  of  process,  and  ignores  the  large  class  of  cases  in 
which,  instead  of  proceeding  against  any  thing,  courts  adju- 
dicate upon  the  status  of  persons  and  obtain  their  authority 
to  do  so  by  a  service  of  their  process,  which,  whether  actual 
or  constructive,  is  still,  in  its  nature,  personal.  The  defini- 
tion found  in  Smith's  Leading  Cases  is  substantially  the 
same  as  that  which  we  have  quoted  from  the  case  of  Wood- 
ruff^ y.  Taylor.  But  when  we  undertake  to  say  that  a  judg- 
ment in  rem  is  necessarily  "an  adjudication  upon  the  status 
of  some  particular  subject  matter,"  it  seems  to  us  that  we 
either  overlook  the  only  class  of  judgments  to  which  the 
term  in  rem  ought  ever  to  have  been  applied,  or  else  we 
give  to  the  word  status  an  unusual  and  unauthorized  signifi- 
cation. Laws  exist  under  which  property  is  responsible  for 
damages  done  by  it,  for  taxes  imposed  upon  it,  or  for  ex- 
penses incurred  in  its  repairs  and  management.  These 
same  laws  often  authorize  the  obligation  by  them  imposed 
upon  the  property,  to  be  enforced  by  proceedings  in  which 
the  property  is  the  defendant,  and  in  which  no  service  of 

1  Smith's  Lead.  Gas.  vol.  2,  pp.  585-6;  p.  660  of  6th  Am.  ed. 

CC5 


§G06  LAW  OF  JI'DGMEXTS.        [Chap.  XXVIII. 

process  is  required,  except  upon  such  property.  The  judg- 
ment resulting  from  such  a  proceeding  is  in  rem,  and  satis- 
faction thereof  is  produced  by  an  execution  authorizing  the 
sale  of  the  property.  The  sale  acts  upon  the  j^voperty,  and 
in  so  acting,  necessarily  affects  all  claimants  thereto.  But 
the  judgment  does  not  affect  the  status  of  the  property, 
except  in  the  same  sense  that  a  judgment  against  A.  B.  for 
a  sum  of  money  affects  his  status.  In  the  one  case,  it  is 
settled,  that  an  obligation  rests  upon  certain  property;  in 
the  other,  it  is  settled,  that  a  similar  obligation  rests  on  a 
certain  person.  Each  judgment  adjudicates  upon  a  status, 
so  far  as  it  establishes,  that  the  defendant  is  in  the  state 
or  condition  of  being  accountable  to  the  plaintiff  for  a  sum 
of  money.  Neither  judgment  establishes  any  status  differ- 
ent from  that  established  by  the  other.  Therefore,  a  judg- 
ment against  a  brute,  a  tract  of  land,  or  a  vessel,  for  a  sum 
of  money,  to  be  satisfied  by  execution  against  such  brute, 
land  or  vessel,  though  clearly  in  rem,  no  more  determines  a 
status  than  though  the  defendant  were  a  person. 

Judgments  in  rem,  it  is  well  known,  are  not,  as  the  name 
implies,  confined  to  adjudications  against  things.  They  are 
rendered  in  many  instances  where  the  prior  proceedings  are 
entirely  in  personam,  as  in  cases  establishing  or  dissolving 
marriages.  Neither  are  they,  as  is  frequently  stated,  bind- 
ing on  the  ivhole  loorld,  for  decrees  of  divorce  rendered  in 
one  of  these  United  States  have  frequently  been  disre- 
garded in  the  other  States,  and  they  w^ould  almost  certainly 
be  treated  as  nullities  in  England  if  the  marriage  were  con- 
tracted in  that  country  between  natives  thereof;  and  the 
probate  of  a  will,  though  considered  as  a  judgment  in  rem 
in  the  State  in  whose  courts  it  is  probated,  would  have  no 
effect  over  real  property  beyond  the  jurisdiction  of  that 
State.  The  distinguishing  characteristic  of  judgments  in 
rem,  is  that  wherever  their  obligation  is  recognized  and 
enforced  as  against  any  person,  it  is  equally  recognized  and 
enforced  as  against  all  i:)ersons.  It  seems  to  us  that  the 
true  definition  of  a  judgment  in  rem  is  that  it  "is  an  adju- 
dication" against  some  person  or  thing,  or  "upon  the  status 
of  some  subject  matter"  which,  wherever  and  whenever 
binding  upon  any  person,  is  equally  binding  upon  all  persom. 

COG 


Chap.  XXYIII.]        GRANTS  OF   PKOBATE. 


55G07-G08 


§  607.  Different  Proceedings  In  Rem. — Neither  of  the 
definitions  or  descriptions  given  in  the  preceding  section 
will,  of  itself,  enable  the  reader  to  determine  whether  a 
particular  judgment  is  in  rem,  because  the  particular  cases 
in  which  adjudications  arc  binding  on  all  ijersons,  are  to  be 
ascertained  only  by  reference  to  statutes,  or  to  the  common 
law  as  expressed  in  the  reported  decisions  of  its  judges. 
Among  the  proceedings  resulting  in  judgments  or  decrees  in 
rem  are,  those  in  the  prize  courts  of  all  civilized  countries, 
those  in  the  English  "  Court  of  Exchequer,  in  cases  of  for- 
feitures for  treasons,  felonies,  or  a  violation  of  the  revenue 
laws.  Proceedings  are  had  in  the  natiwe  of  proceedings 
in  rem,  and  without  notice,  in  courts  admitting  wills  to  pro- 
bate, and  granting  administration,  and  the  expectancies  of 
heirs  and  distributees  swept  away  when  the  weakness  of 
infancy,  or  residence  in  a  foreign  land  should,  seemingly, 
protect  them,  because  of  the  permanent  political  considera- 
tion, that  the  rights  of  property  thus  situated  should  be 
speedily  settled  by  a  legal  ascertainment  of  them.  All  of 
which  adjudications  are  dictated  by  public  policy  and  ne- 
cessity, regardless  to  some  extent,  of  private  rights."' 


Z  G08.     Grants  of  Probate  and  of  Administration. 


'A 


grant  of  i^robate  or  of  administration  is  in  the  nature  of  a 
decree  in  rem,  and  actually  invests  the  executor  or  admin- 
istrator with  the  character  which  it  declares  to  belong  to 
him."  -  The  probate  of  a  will  cannot  be  collaterally  avoided 
on  the  ground  that  the  will  is  a  forgery;  or  that  the  testator 
made  a  subsequent  will  and  appointed  another  executor.  ^ 
Neither  can  it  be  collaterally  impeached  on  any  other  ground  ;* 
nor  set  aside  by  a  proceeding  in  chancery.^  The  probate 
of  a  will  establishes  its  status;  and  the  status  thus  estab- 


1  Pinsou  V.  Ivey,  1  Yerg.  349. 

2  2  Smith's  Leading  Cases,  Gth  Am; 
ed.  p.  CG9;  Noel  v.  Wells,  1  Lev.  235. 
Allen  V.  Dundas,  3  T.  R.  125;  Fiy  v. 
Taylor,  1  Head,  594;  Archer  t\  Masse, 
2  Vernon,  8;  Gingell  v.  Home,  9  Sim. 
539. 

3  Moore  v.  Janner's  Adm'r,  5  Monr. 
42. 


*  Vanderpoel  v.  Van  Valkenbergh,  6 
N.  Y.  190. 

5Coltonv.  Eoss,  2  Pai.  396;  State 
V.  McGlynn,  20  Cal.234;  Kerrick  v. 
Bransby,  7  Brown's  Cas.  437;  Jones 
V.  Jones,  7  Price's  Ex.  6G3;  Jones  v. 
Frost,  Jacobs,  466;  Pemberton  v. 
Pemberton,  13  Ves.  290;  Adams  v.  De 
Cook,  1  McAllister,  253. 
GOT 


§§603-010 


LAW   OF   JUDGMENTS.         [Chap.  XXVIII. 


lisLed  adheres  to  the  "u-iil  "  as  a  fixture,  and  the  judgment 
or  decree  in  the  premises,  unless  avoided  in  some  mode 
prescribed  by  law,  binds  and  concludes  the  whole  world .".  ' 
"If  probate  is  granted  of  a  will.,  then  that  conclusively 
establishes,  in  all  courts,  that  the  will  was  executed  accord- 
ing to  the  law  of  the  country  where  the  testator  was  domi- 
ciled."" "Of  course,  such  probate  does  not  touch  the 
question  of  the  application  of  the  will  to  real  estate,  unless 
the  will  be  executed  and  recorded  according  to  the  lex  rei 


Sit(£. 


"3 


§  GOO. 


In  decreeing  the  sale  of  the 


Decrees  of  Sale, 
real  estate  of  a  lunatic  or  of  a  deceased  person,  the  court 
acts  in  rem.  If  a  judgment  be  entered  against  a  lunatic 
after  such  decree  under  which  his  property  is  sold,  the  pur- 
chaser can  acquire  nothing  at  the  sale  as  against  a  person 
claiming  under  the  decree.  It  is  impossible  for  the  subse- 
quent lieu  holder  to  defeat  the  orders  of  the  court  in  regard 
to  real  estate  subject  to  its  power.* 

§  GIO.  Marriage  and  Divorce. — "A  sentence  in  a  matri- 
monial suit  is  conclusive,  for  it  is  an  adjudication  upon  the 
status  of  the  parties.^  But  it  is  otherwise  when  the  suit 
is  for  a  jacitation  of  marriage,  for  there  the  spiritual  court 
does  not  intend  to  affect  the  status  of  the  parties  by  its  de- 
cree, but  merely  to  prevent  one  party  from  falsely  asserting 
that  a  marriage  happened  under  certain  specified  circum- 
stances."'' A  sentence  in  a  matrimonial  suit,  is  no  doubt 
binding,  as  a  judgment  in  rem,  and,  as  such,  conclusive 
upon  all  persons  in  all  countries  where  the  power  of  the 
court  to  establish  or  annul  the  marriage  relation  is  con- 


1  Derland  v.  Harrington's  Heirs,  29 
Ala.  95;  Woodruff  u.  Taylor,  20  Verm. 
65;  Ballon  v.  Hudson,  13  Gratt.  682; 
State  V.  McGlynn,  20  Cal.  2;jl. 

2  Whicker  v.  Hume,  7  H.  of  L. 
Cases,  124. 

^  Wharton's  Conflict  of  Laws,  j  G45; 
Story's  Conflict  of  Laws,  ^  -17  i ;  Eob- 
ertscn  v.  Barbour,  G  Monr.  5«^-l;  Jones 
V.  Eobinson,  17  Ohio  St.  171;  Kerr  v. 
Moore,  9  Wheat.  505. 
008 


*•  Latham  v.  Wiswall,  2  Ired.  Eq. 
291;  Wyman  v.  Campbell,  6  Tort.  219. 

^2  Smith's  Lead.  Cas.  p.  G70,  of 
Gth  Am.  ed.  citing  Da.  Costa  v.  Villa 
Real,  Str.  901;  Bunting's  Case,  4  Co. 
29;  Kenn's  Case,  7  Co.  42;  Mcddow- 
croft  V.  Huguenin,  4  Moore,  386  ; 
Perry  v.  Meddowcroft,  10  Bcav.  122. 

6  Smith's  Load.  Cas.  vol.  2,  p.  670. 


Chap.  XXYIII.]  juKisDiCTiox.  g§G10~Gll 

ceded.  But  this  relation,  in  some  countries,  as  for  instance 
in  England  until  the  establishment  of  the  divorce  court  in 
1858,  could  not  be  destroyed  by  the  courts  of  the  country 
wherein  it  was  created,  nor  would  the  courts  of  that  country 
recognize  the  power  of  any  other  courts  to  annul  marital 
obligations  contracted  in  England  between  natives  thereof. 
A  foreign  divorce,  therefore,  had  no  effect  either  vi  rem  or 
*?i  jjersonam,  if  the  parties  were  residents  of  England  mar- 
ried therein.  1  It  is  still  clear  that  "in  no  case  has  a  for- 
eign divorce  been  held  to  invalidate  an  English  marriage 
betvreen  English  subjects,  where  the  parties  were  not  domi- 
ciled in  the  country  by  the  tribunals  of  which  the  divorce 
was  granted. 2  The  extra-territorial  effect  of  divorces 
granted  in  the  State  courts  of  the  United  States,  has  already 
been  considered  in  the  chapter  on  judgments  in  the  sister 
States.  3 

§  611.  Jurisdiction. — In  treating  of  judgments  in  per- 
sonam, we  found  that  the  first  and  most  material  inquiry  in 
regard  to  an  apparent  record  was  in  reference  to  the  juris- 
diction of  the  court  from  which  the  record  was  produced; 
that  the  first  jurisdictional  inquiry  was  whether  the  court 
had  authority  over  the  subject  matter,  and  the  second  was 
whether  it  had  authority  over  the  parties.  A  judgment  in 
rem,  at  least  when  against  any  thing,  binds  the  'Wvs  in  the 
absence  of  any  personal  notice  to  the  parties  interested."* 
Those  parties  even  in  the  absence  of  personal  notice,  are 
to  be  regarded  as  parties  to  the  suit.^  Therefore,  in  a 
large  number  of  cases  involving  the  effect  of  judgments  and 
decrees  in  rem,  no  inquiry  in  regard  to  jurisdiction  over  the 
persons  interested  is  material ;  but  even  in  these  cases  two 
jurisdictional  inquiries  must  be  answered  in  the  affirmative 
in  order  to  uphold  the  judgment  or  decree,  viz:     1st.    Did 


1  Macarthey  r.  Decaix,  2  Eus,  & 
M.  614;  Eex  v.  Lolley,  1  R.  &  E.  C. 
C.  237. 

2  Shaw  V.  Att'y-Gen'l,  L.  J.  Eep.  N. 
S.  Vol.  39,  p.  81;  Shaw  r.  Gould,  3 
H.  of  L.  Gas.  56;  Eobins  i;.  Dolphin, 
1  Swaby  &  Tr..  37;  affirmed  7  H.  of 
L.  Gas.  390. 


3  See  Sees.  579-584. 

•»  The  Globe,  2  BItchf.  427. 

'"  Bauduc's  Sj-ndies  v.  Nicholson,  4 
Miller  Lou.  81;  Thomas  u.  Southard, 
2  Dana,  475;  Burn  v.  Bletcher,  23  U. 
C.  Q.  B.,  36. 


609 


g^Gll-G13  LAW  OF  JUDGMENTS.        [Chap.  XXVIII. 

the  court  have  the  authority  to  determine  the  subject  mat- 
ter of  the  controversy.  2cl.  Did  the  court  have  jurisdiction 
over  the  tldng  proceeded  against  as  a  defendant.  Tlie  an- 
swer to  the  first  inquiry,  must,  as  in  the  case  of  judgments  hi 
>'x>'/  personam,  be  found  in  the  hiws  creating  the  court  and  des- 
ignating its  general  authority. 

^  612.  Ho-w  Avoided  if  from  Foreign  Court. — In  con- 
sidering a  judgment  in  rem  pronounced  in  some  foreign 
country,  the  inquiry  is  not  whether  the  defendant  was 
summoned  nor  whether  he  appeared  in  the  suit.  "The 
question  is,  did  the  forum  rei  sites  proceed  according  to  its 
own  municipal  laws,  in  pronouncing  such  judgment  or  de- 
cree." The  effect  of  the  judgment  or  decree  may  be 
avoided  by  showing  that  it  was  procured  by  fraud;'  that  it 
is  void  on  its  face,  or  void  by  the  local  law,  fori  rei  judlcalae. 
It  may  be  shown  that  the  notice  required  by  law  was  not 
given.  But  errors  of  law  appearing  od  the  face  of  the  pro- 
ceedings will  not  be  considered,  for  their  consideration 
involves  the  exercise  of  appellate  jurisdiction.^ 


PART  n.-OF  JUDGMENTS  AND  DECREES  IN  ADMIRALTY. 

g  G13.  General  Nature  of. — Courts  of  Admiralty  are 
spoken  of  as  courts  held  under  the  law  of  nations.  To  the 
proceedings  of  these  courts,  all  persons  having  any  interest 
in  the  subject  matter  of  the  suit  are  regarded  as  parties 
and  are  allowed  to  appear  and  contest  the  rights  of  the 
libellant.  ^  Especially  in  proceedings  in  the  exercise  of  their 
jurisdiction  over  questions  of  prize,  do  these  courts  act 
nnder  and  in  accordance  with  the  law  of  nations.  And  as 
each  judgment  is  binding  and  conclusive  throughout  the 
jurisdiction  in  which  it  is  pronounced,  the  judgments  de- 
termining questions  of  prize  must  be  recognized  and  en- 
forced in  all  countries  Avhere  the  law  of  nations  under 
which  the  prize  court  acted  is  acknowledged  and  respected. 


4 


1  Sec.  502,  Story's  Conflict  Laws. 
2 Moore  v.    Douglas,  4   Sanf.  Ch. 
184. 

GIO 


SArmroyd  v.  Williams,  2  Wasli.  C. 
C.  503. 

4Browu  u.  Union  Ins.  Co.,  4  Day, 
17J. 


Chap.  XXVIII.]  JURISDICTION.  §§613-G14 

This  general  respect  of  the  decisions  of  Admiralty  Courts 
was,  no  doubt,  engendered  by  considerations  of  the  un- 
certainty, hardship  and  inconvenience  which  were  sure  to 
result  unless  those  decisions  were  conclusive  in  all  countries. 
The  subject  matter  of  the  decisions  being  vessels,  intended 
for  the  purposes  of  commerce  in  all  parts  of  the  world, 
it  is  obvious  that  unless  the  decisions  were  binding  every- 
where, no  one  would  dare  to  navigate  any  vessel  beyond 
the  jurisdiction  of  the  nation  in  whose  courts  the  title  to 
such  vessel  had  been  divested  from  one  person  and  vested 
in  another.  In  an  early  English  case,  the  judge,  in  holding 
the  sentence  of  a  foreign  court  in  admiralty  conclusive, 
ironically  remarked,  "that,  otherwise,  merchants  would  be 
in  a  pleasant  condition."^  And  an  early  American  case, 
expressed  the  same  idea,  in  a  different  and  better  form, 
when,  in  speaking  of  a  Court  of  Admiralty,  it  said,  "If  its 
decree  were  not  binding  on  all  the  world  upon  the  points 
which  it  professes  to  decide,  the  consequences  would  be 
most  mischievous  to  the  public.'"  The  law  in  reference  to 
condemnations  in  admiralty  ' '  appears  to  me  to  rest  upon 
three  very  obvious  considerations :  the  propriety  of  leaving 
the  cognizance  of  prize  cases  exclusively  to  courts  of  prize 
jurisdiction;  the  very  great  inconvenience  amounting  nearly 
to  an  impossibility  of  fully  investigating  such  cases  in  the 
courts  of  common  law;  and  the  impropriety  of  revising  the 
decisions  of  maritime  courts  of  other  nations  whose  juris- 
diction is  co-ordinate  throughout  the  world."" 

g  614.  Jurisdiction. — A  sentence  of  a  court  of  admiralty, 
professing  to  proceed  in  rem,  is  liable  to  be  avoided  upon 
showing  that  the  tribunal  had  no  jurisdiction  over  the  res 
against  which  it  proceeded,  or  that,  by  the  law  of  its  crea- 
tion, it  had  no  authoritj^  to  determine  the  questions  on 
whose  determination  its  sentence  is  founded.  Chief  Jus- 
tic  Marshall  considered  and  decided  this  question,  in  an 
opinion  pronounced  by  him  in  1808,  in  which  he  said;  "Can 
this  court  examine  the  jurisdiction  of  a  foreign  tribunal  ? 


B  Hughes  V.   Cornelius,  2   Shower, 
232. 


1  Gelston  v.  Hoyt,  3  Wheat.  246. 
-  Croudson  v.  Leouard,  4  Crauch. 
434. 

611 


gG14  LAW  OF  JUDGMENTS,        [Cliap.  XXYIII. 

•"Tlio  court  pronouncing  sentence,  of  necessity,  decided 
in  favor  of  its  jurisdiction;  and,  if  the  decision  was  errone- 
ous, that  error,  it  is  said,  ought  to  be  corrected  by  the 
superior  tribunals  of  its  own  country,  not  by  those  of  a 
foreign  country. 

"This  proposition  certainly  cannot  bo  admitted  to  its  full 
extent.  A  sentence,  professing  on  its  face  to  be  the  seu- 
tence  of  a  judicial  tribunal,  if  rendered  by  a  self  constituted 
body,  or  by  a  body  not  empowered  by  its  government  to 
take  cognizance  of  the  subject  which  it  had  decided  could 
have  no  legal  effect  v/hatever. 

"The  power  of  the  court,  then,  is,  of  necessity,  examina- 
ble to  a  certain  extent  by  that  tribunal  which  is  compelled 
to  decide  whether  its  sentence  has  changed  the  rights  of 
property.  The  power  under  which  it  acts  must  be  looked 
into,  and  its  authority  to  decide  questions  which  it  professes 
to  decide  must  be  considered. 

"But  although  the  general  power  by  which  a  court  takes 
its  jurisdiction,  of  necessity,  must  be  inspected,  in  order 
to  determine  whether  it  may  rightfully  do  v.hat  it  professes 
to  do,  it  is  still  a  question  of  serious  difiiculty  whether  the' 
situation  of  the  particular  thing  on  which  the  sentence  is 
passed  may  l^e  inquired  into,  for  the  purpose  of  deciding 
vv-hether  that  thing  was  in  a  state  which  subjected  it  to  the 
jurisdiction  of  the  court  passing  sentence.     For  example, 
in  every  case  of  a  foreign  sentence  condemning  a  vessel  as 
a  prize  of  war,  the  authority  of  the  tribunal  to  act  as  a 
prize  court  must  be  examinable.     Is  the  question,  whether 
the  vessel  condemned  was  in  a  situation  to  subject  her  to 
the  jurisdiction  of  that  court,  also  examinable?     This  ques- 
tion, in  the  opinion  of  the  court,  must  be  answered  in  the 
affirmative.     Upon  principle,  it  would  seem  that  the  opera- 
tion of  every  judgment  must  depend  on  the  power  of  the 
court  to   render  that  judgment;  or,  in  other  words,  on   its 
jurisdiction  over  the  subject  matter  which  it  has  determined. 
In  some  cases,  that  jurisdiction  unquestionably  depends  as 
well  on  the  state  of  the  thing,  as  on  the  constitution  of  tlie 
court.     If,  by  any  means  whatever,  a  prize  court  should  bo 
induced  to  condemn,  as  prize  of  war,  a  vessel  which  Avas 
never  captured,  it  could  not  be  contended  that  the  condem- 
012 


Chap.  XXVIII.]  EES  JUDICATA. 


§^G14-G15 


nation  operated  as  a  change  of  property.  Upon  principle, 
then,  it  would  seem  that,  to  a  certain  extent,  the  capacity 
of  the  court  to  act  upon  the  thing  condemned,  arising  from 
its  being  within  or  v»-ithout  their  jurisdiction,  as  well  as  the 
constitution  of  the  court,  may  be  considered  by  that  tri- 
bunal, which  is  to  decide  on  the  effect  of  the  sentence."^ 
A  prize  court  has  no  authority  to  "sit  in  the  dominions  of 
a  neutral  power.  '  Its  doing  so,'  as  Sir  William  Scott  ob- 
served in  the  celebrated  case  of  the  The  Flad  0//cn  (8  T.  K. 
270,  note),  'is  a  licentious  attempt  to  exercise  the  rights  of 
war  in  the  bosom  of  a  neutral  country.'  Accordinglj-,  to 
the  sentence  of  such  a  tribunal,  our  courts  attribute  no 
credit  or  authority  whatever."- 

§  615.  Effect  as  Res  Judicata. — Decisions  of  admiralty 
courts  proceeding  iii  rem  derive  additional  importance  from 
the  fact  that,  besides  determining  the  rights  of  property  in 
the  thing  seized  and  adjudicated  upon,  they  also  conclu- 
sively establish,  even  as  against  others  than  the  ov/ners  and 
libellants,  the  facts  distinctly  found  by  the  court  and  neces- 
sary to  sustain  the  sentence.  "The  decree  Mill  be  conclu- 
sive upon  the  question  as  well  as  the  thing,  and  cannot  be 
contradicted  in  any  subsequent  controversy  with  reference 
to  the  same  property,  although  between  persons  who  were 
not  parties  to  the  decision,  and  founded  on  a  contract  ante- 
rior to  the  period  at  which  it  was  made."*  Thus,  a  decree 
condemning  a  vessel  for  a  breach  of  a  blockade,  or  for  a 
violation  of  revenue  laws,  is  conclusive  evidence  of  such 
breach  or  violation  in  any  subsequent  controversy  between 
the  owner  of  the  vessel  and  its  insurers.*  The  same  efifect 
belongs  to  a  decree  resulting  from  a  proceeding  in  rem  in 
an  admiralty  court  for  damages  done  by  one  vessel  to  an- 


*  Piose  V  Himely,  4  Crancli.  241, 
269;  Cheriot  v.  Foussat,  3  Binu.  210. 

22  Smith's  Lead.  Cas.  Vol.  2,  p. 
683  of  Gtb  Am.  ed.;  citing  Ilavelock 
V.  Rockwood,  8  T.  R.  276;  Doualdsou 
V.  Thompson,  1  Camp.  429;  Oddy  v. 
Bovii,  7  T.  R.  523. 

■■  2  Smith's  Lead.  Cas.,  6th  Am.  ed. 
p.  y3G, 


*GroningtJ.  Union  Ins.  Co.,  1  N. 
&  McC.  537;  Croudson  v.  Leonard,  4 
Crunch.  434 ;  Bradstreet  v.  Neptune 
Ins.  Co.,  3  Sumner,  600;  Baxter  v.  N. 
E.  Marine  Ins.  Co.,  6  Mass.  277;  Lud- 
low V.  Dale,  1  Johns.  Ca.  16;  Whitney 
V.  Walsh,  1  Cush.  29. 


613 


g ^015-017  LAW  OF  JUDGMENTS.  [Cllfip.  XXYTII. 

other  at  sea.'  But  the  jurisdiction  of  courts  of  admiralty 
to  make  adjudications  binding  against  persons  not  parties 
to  the  proceedings,  may  be  limited  by  stipulation.  A  pol- 
icy of  insurance  written  in  Pliiladelphia  contained  a  war- 
ranty by  the  assured  that  the  goods  insured  were  '^  Ameri- 
can property,  to  be  proved,  if  required,  in  this  city,  and  not 
elsewhere."  These  goods  were  condemned  as  enemy's  prop- 
erty in  a  foreign  court  of  admiralty  ;  but  the  assured  was 
held  not  to  be  bound  by  the  decree  of  condemnation.^ 

§  GIG.  Sentence  of  Acquittal  as  Res  Judicata. — No 
distinction  exists  between  a  sentence  of  condemnation  and 
a  sentence  of  acquittal  in  regard  to  the  princijDle  of  res  judi- 
cata. The  latter  is  as  conclusive  on  all  persons  that  the  al- 
leged ground  of  condemnation  does  not  exist,  as  the  former 
is  that  it  did  exist.^ 

g  G17.     Effect  as  Res  Judicata  confined  to  Parties  in 
Interest. — Notwithstanding  the  frequency  with  which  it  has 
been  stated,  in  general  terms,  that  a  judgment  in  rem  is 
conclusive  on  the  whole  world,  this  conclusiveness  must,  it 
seems,  be  confined  to  those  persons  who,  from  their  inter- 
est in  the  subject  of  the  proceeding  in  rem,  were  entitled  to 
appear  in  such  proceeding,  and  assert  their  interest  in  the 
thing  condemned.     In  the  year  1813,  during  the  war  be- 
tween Great  Britain  and  the  United  States,  the  brig  3Iary 
was  captured  by  an  American  privateer  and  brought  into 
an  American  port,  where  '*the  vessel  and  cargo  were  libeled 
as  enemy  property."     No  claim  being  made  in  behalf  of  the 
owners  of  the  vessel  she  was  condemned.     The  cargo  was 
claimed  by  one  Visscher,  for  himself  and  others;  and  the 
sentence  of  condemnation  against  the  Ilari/  was  relied  upon 
by  her  captors  as  establishing  as  against  the  claimants  of 
the  cargo  that  the  brig  was  enemy's  property.     Chief  Justice 
Marshall  delivered  the  opinion  of  the  court,  denying  the 
claim  of  the  captors.     He  argued  that,  as  the  claim  to  the 
vessel  and  the  claim  to  her  cargo  were  distinct  claims  held 


1  Street  v.  Augusta  Ins.  Co.,  12 
Kich.  13  ;  Magoun  v.  N.  Eng.  Ins. 
Co.,  1  Story,  157. 

2  Calhoun  v.  Ins.  Co.,  1  Binn.  293. 

614 


^  Gelston  v.  Hoyt,  13  Johns.  561 ; 
also  same  case  in  3  Wheaton,  246, 
318  :  Williams  v.  Armroycl,  7  Cranch, 
423. 


Cliap.  XXYIII.]  KES  JUDICATA.  §G17 

by  different  persons,  the  failure  to  assert  one  ouglit  not  to 
prejudice  the  assertion  of  the  other;  that  the  owners  of  the 
cargo  not  having  any  interest  in  the  vessel,  could  not  appear 
for  her  nor  conduct  any  j)roceediii!|B  in  her  behalf,  tending 
to  show  that  she  was  American  property.  In  the  course  of 
his  opinion  he  said :  ' '  This  case  is  to  be  distinguished  from 
those  which  have  been  decided  on  policies  of  insurance, 
not  only  by  the  circumstance  that  the  cause  respecting  the 
vessel  and  her  cargo  came  on  at  the  same  time  before  the 
same  court,  but  by  the  differences  in  reason  and  in  law, 
which  appear  to  be  essential. 

"The  decisions  of  a  court  of  exclusive  jurisdiction  are 
necessarily  conclusive  on  all  other  courts,  because  the  sub- 
ject matter  is  not  examinable  in  them.  With  respect  to 
itself,  no  reason  is  perceived  for  yielding  to  them,  a  further 
conclusiveness  than  is  allowed  to  the  judgments  and  decrees 
of  common  law  and  equity.  They  bind  the  subject  matter 
as  between  parties  and  privies. 

"The  whole  world,  it  is  said,  are  parties  in  an  admiralty 
cause;  and,  therefore,  the  whole  world  is  bound  by  the  de- 
cision. The  reason  on  which  the  dictum  stands,  will 
determine  its  extent.  Every  person  may  make  himself  a 
party,  and  appeal  from  the  sentence;  but  notice  of  the  con- 
troversy is  necessary  in  order  to  become  a  party,  and  it  is 
a  principle  of  natural  justice,  of  universal  obligation,  that 
before  the  rights  of  an  individual  can  be  bound  by  a  judicial 
sentence,  he  shall  have  notice,  either  actual  or  con- 
structive, of  the  proceedings  against  him.  Where  these 
proceedings  are  against  the  person,  notice  is  served  per- 
sonally, or  by  publication ;  where  they  are  in  rem,  notice  is 
served  on  the  thing  itself.  This  is  necessarily  notice  to  all 
those  who  have  any  interest  in  the  thing,  and  is  reasonable 
because  it  is  necessary,  and  because  it  is  the  part  of  com- 
mon prudence  for  all  those  who  have  any  interest  in  it, 
to  guard  that  interest  by  persons  who  are  in  a  situation  to 
protect  it.  Every  person,  therefore,  who  could  assert  any 
title  to  the  Mary,  has  constructive  notice  of  her  seizure,  and 
may  fairly  be  considered  a  party  to  the  libel.  But  those 
who  have  no  interest  in  the  vessel  which  could  be  asserted 
in  the  court  of  admiralty,  have  no  notice  of  her  seizure, 

G15 


^gG17-G18  LAW  OF  JUDGMENTS.        [Chap.  XXVIII. 

and  CLin,  on  no  principle  of  justice  or  rea«on,  be  considered 
as  parties  in  the  cause,  so  far  as  respects  the  vessel.  When 
such  person  is  brought  before  a  court  in  Avhich  the  fact  is 
examinable,  no  sufficient  reason  is  perceived  for  precluding 
him  from  reexamining  it.  The  judgment  of  a  court  of  com- 
mon law,  or  the  decree  of  a  court  of  equity,  would,  under  such 
circumstances,  be  rciexaminable  in  a  court  of  common  law, 
or  a  court  of  equity;  and  no  reason  is  discerned  why  the 
sentence  of  a  court  of  admiralty,  under  the  same  circum- 
stances, should  not  be  rcexamiuable  in  a  court  of  ad- 
miralty."' ' 

§  618.     The  Grounds  of  the  Sentence  must  Appear. — 

No  doubt  a  decree  in  rem,  pronounced  in  an  admiriilty 
court,  is  not  conclusive  of  any  fact  not  necessary  to  support 
it;-  and  it  is  very  questionable  whether  it  is  conclusive  in 
regard  to  those  facts  unless  it  professes  to  have  determined 
them,  and  sets  them  up  as  the  ground  of  its  decision.  Lord 
Mansfield  was  of  the  opinion  that  if  a  vessel  were  con- 
demned as  good  and  laiu/id  pj'ize,  and  no  ground  for  such 
condemnation  were  specified,  it  must  be  presumed  to  have 
beeji  on  the  ground  that  the  vessel  was  enemy's  property.  ^ 
But  this  opinion  of  his  Lordship's  is  greatly  shaken,  if  not  en- 
tirely overthrown,  both  in  England  and  in  the  United  States. 
As  there  are  other  sufficient  causes  for  condemniug  a  ves- 
sel, besides  that  of  its  being  an  enemy's  property,  there  is 
no  reason  why  every  condemnation  should  be  presumed  to 
be  based  on  that  ground,  because  no  other  ground  appears.* 
A  case  came  before  the  Supreme  Court  of  the  United  States, 
involving  the  effect  of  a  sentence  condemning  an  American 
ship  as  laivful  prize.  The  court  held  that  the  condemnation 
did  not  show  any  violation  of  the  neutrality  laws,  and  that 
it  was  open  to  the  plaintifi's  to  show  that  the  vessel  had 
behaved  as  an  American,  and  not  as  an  enemy's  ship." 
If  a  sentence  of  condemnation  is  shown  to  be  based  either 


1  The  Mary,  9  Cranch .  126. 

2  Maley  v.  Sbattuck,  3  Cranch.  458. 
^  Saloucci  V.  Woodmass,  Park.  352; 

3  Doug.  345;  see  also  Baring  v.  Clag- 
ett,  3  B.  &  r.  215. 

*  Dalgleish  v.  Iloclson,  7  Bing.  504; 

GIG 


Fisher  v.  Ogle,  1  Camp.  418;  Bailey 
V.  South  Carolina  Ins.  Co.,  1  Nott.  & 
McC.  44;  Goix  v.  Low,  2  Johns.  Cas. 
480. 

■'  Fitzsimmons  v.  Ne^yport  Ins.  Co., 
4  Cranch.  185. 


Ckap.  XXYIII.]     GROUNDS  of  sentence.  gG18 

on  the  ground  that  the  vessel  was  an  enemy's  property,  or 
that  it  had  violated  some  law  of  regulation  of  tlie  country 
where  it  was  condemned,  the  sentence  of  condemnation  is 
not  evidence  of  a  breach  of  the  warranty  of  neutrality.  ^ 
If  a  decree  of  condemnation,  states  a  particular  ground, 
and  then  condemns  the  vessel  on  account  of  such  ground, 
or  otheriuise,  the  addition  of  the  words  or  otherivise,  renders 
the  grounds  of  the  decree  uncertain,  and  prevents  it  from 
being  conclusive  on  the  ground  mentioned. "  But  if  a  de- 
cree professes  to  proceed  for  a  specified  cause,  and  for  other 
sufficient  causes,  it  is  conclusive  of  the  existence  of  the  cause 
specified.  =* 

"  The  sentence  of  a  foreign  court  of  admiralty  of  compe- 
tent jurisdiction  is  binding  upon  all  parties,  and  in  all 
countries,  as  to  the  fact  upon  which  the  condemnation  pro- 
ceded,  when  such  fact  appears  on  the  face  of  the  sentence, 
free  from  doubt  and  ambiguity. 

"But  it  is,  at  the  same  time,  well  established  that,  in 
order  to  conclude  the  parties  from  contesting  the  ground  of 
condemnation  in  an  English  court  of  law,  such  ground  must 
clearly  appear  on  the  face  of  the  sentence;  it  must  not  be 
collected  by  inference  only,  or  left  in  uncertainty,  whether 
the  ship  was  condemned  upon  one  ground  which  would  be 
a  just  ground  of  condemnation  by  the  law  of  nations,  or  on 
another  ground  which  would  amount  only  to  a  breach  of 
the  municipal  regulations  of  the  condemning  country. "* 
Whenever  a  decree  is  ambiguous,  and  does  not  show  clearly 
that  it  is  based  on  some  specified  ground,  it  is  not  conclu- 
sive upon  any  ground,  and  the  parties  in  interest  are  at  lib- 
erty to  show  by  any  competent  evidence  the  status  of  the 
vessel  at  the  time  of  her  condemnation.  ^ 


^  Bernardi  v.  Motteaux,  2  Dougl. 
y75;Lotliiauu.  Henderson,  3  B.  &  P. 
52G. 

2Kobinson  v.  Jones.  8  Mass.  536. 

3 Baxter  v.  New  Ei:glaud  Marine 
Iu8.  Co.,  6  Mass.  277. 

4Dalgleishu.  Hodgson,  7  Bing.  495; 


Hobs  V.   Henning,   17   C.    B.    N.  S. 
791. 

sVass  V.  Ball,  2  Ball,  270;  Black- 
lock  v.  Stewart,  2  Bay,  363;  William- 
sou  V.  Fitzsimmons,  2  Bay,  388;  Gray 
V.  Swan,  1  Har.  &,  J.  142. 

617 


INDEX. 


[li.B. — THE  NtTMBEKS   KEFEE   TO   THE   SECTIONS.] 


A. 

ABSENTEE, 

Jarisdiction  of  courts  over,  589,  590. 

by  compulsion,  judgment  against  void,  127. 
ACCIDENT, 

as  grounds  for  relief  from  judgment,  486,  500a. 
ACCOUNTS, 

•what  constitute  an  indivisible  demand,  239. 
ACQUITTAL, 

what  a  bar  to,  in  criminal  cases,  318. 

not  evidence  in  civil  cases,  319. 
ACTIONS  CONFLICTING  WITH  PEIOR  JUDGMENTS, 

for  concealing  defenses,  287. 

for  credits  not  allowed,  286. 

for  not  dismissing  as  agreed,  292. 

on  promise  to  credit  on  judgment,  292. 

Massachusetts  cases  in  regard  to,  285. 
ACTIONS,  JUDGMENT  ESTOPPEL  IN, 

common  recovery,  294. 

distinctions  between  real  and  personal,  293, 

ejectment,  295-302. 

foreclosure,  303. 

partition,  304-07. 
ACTIONS  ON  JUDGMENTS, 

when  sustainable,  432. 

not  sustainable  on  judgment  of  division  court  in  Canada,  432. 

not  sustainable  on  judgment  against  a  county,  432a, 

on  lost  record,  4326. 

on  voidable  judgment,  435. 

pending  appeal,  433. 

on  decrees,  434. 

defenses  in,  435,  439. 

on  judgments  procured  by  attaching  property,  436. 

who  may  maintain,  437. 

did  not  survive  defendant,  438. 

execution  not  lost  by  pendency  of,  440. 

interest  in,  when  allowed,  441. 
ACT  OF  OFFICERS, 

when  justifiecl  by  judgment,  529-31, 

what  are  treated  as  judicial,  531. 


G20  INDEX. 

ADJOURNMENT, 

of  term  of  court,  jurisdiction  lost  by,  121. 

ot  justice's  court,  without  day,  526. 
ADMISSIOKS, 

estoppel  by,  330-31. 
ADillNISTEATION, 

grnut  of,  is  a  decree  in  rem,  G07,  G08. 
ADMINISTRATOi;, 

judgment  for,  is  a  new  debt  due  Lim,  217. 

lien  of  judgment  against,  358. 

privity  with  creditors,  1G3. 

privity  with  devisees,  1G3. 

privitj'  with  heirs,  1G3. 

privity  with  other  administrator,  1C3, 

when  relieved  from  judgment,  505. 
-'UDMIEALTY  COURTS, 

general  nature  of,  613. 

are  courts  of  nations,  G13. 

jurisdiction  may  be  questioned,  C14. 

sentences  of,  effect  as  res  judicata,  615,  C16, 

sentences  of,  effect  ."s  res  judicata  limited  to  parties  in  interest,  617. 

sentences  of,  conclvisive  only  of  matters  distinctly  found,  GiS. 

sentences  of,  lien  of,  4.06. 
ADVANCES, 

lien  of  judgment  for,  307. 
AFFIDAVIT, 

of  merits  on  motion  to  vacate  judgment,  1C8. 

of  merits  by  whom  to  be  made,  108. 

of  merits  cannot  be  controverted,  109. 

for  iiublicatiou  in  justice's  courts,  527. 
AFTER  ACQUIRED  RIGHTS, 

affected  by  lien  of  jn-ior  judgment,  307. 

not  affected  by  estoppel  of  prior  judgment,  302,  329. 

not  subject  to  lis  pendens,  201 . 
AGENT, 

maj^  confess  a  judgment,  545. 
AGREEMENT, 

cannot  extend  effect  of  judgment  as  res  judicata^  271. 

to  satisfy  judgment  on  part  paymeut,  463. 

dismissal  of  suit  by,  when  a  bar,  'ZG2. 

taking  judgment  contrary  to  ground  for  relief,  492. 
ALTERED  JUDGMENT, 

defendant  may  be  relieved  from,  490. 
ALIMONY, 

must  be  adjudicated  on  in  the  divorce  suit,  314. 
ALTERATION  OF  JUDGMENT, 

makes  it  void,  148a. 
AilENDMENTS, 

during  the  term,  69. 

of  judgment,  70. 

of  ju.lgment  entry,  71. 

data  for,  63,  72. 


INDEX.  G21 

AMENDMENTS— CoNTiNXTED. 
delay  in  applying  for,  73. 
must  not  prejudice  third  persons,  74. 
as  a  matter  of  course,  70 . 
as  a  matter  of  course  by  inserting  name,  70. 
as  a  matter  of  course  by  inserting  interest,  70. 
rule  in  England,  70,  note. 

AMENDED  PLEADINGS, 

effect  as  lis  pendens,  199. 
APPEAL, 

affirmance  on,  no  bar  to  relief  in  equity,  495. 

allowed  onlj^  from  final  judgment,  33-4. 

to  correct  clerical  errors,  45. 

effect  of  pendency  on  judgment  estoppel,  328. 

effect  of  pendency  on  action  on  judgment,  433,  602. 

from  judgments  by  default,  537-40. 

from  judgments  by  confession,  558. 

lien  of  judgment  i-endered  on,  345. 

AKBITKATION, 

entry  of  judgment  on  award,  55. 
effect  of  proceedings  in,  as  res  judicata,  320. 
general  submission  of  all  demands,  320-21. 
of  matters  not  in  dispute,  322. 

ANCESTOR  AND  HEIR, 

privity  of,  168. 
ASSIGNEE  OF  DEBTOR, 

privity  with  creditors,  1 73. 
ASSIGNOR  AND  ASSIGNEE, 

privity  of,  165,  186. 
ASSIGmiENT  OF  JUDGMENTS, 

at  common  law,  421. 

statute  made  is  cumulative,  421 . 

by  parol,  422. 

by  transfer  of  cause  of  action,  422. 

partial,  424. 

of  future  judgments,  425. 

notice  of,  426. 

action  against  assignor  for  satisfying  judgment,  426a. 

rights  of  assignee  against  the  parties,  427. 

rights  of  assignee  against  third  persons,  428. 

rights  of  assignee  against  prior  assignee,  429. 

rights  of  assignee  on  reversal,  482,  484. 

rights  passing  with  assignment,  429. 

cannot  be  made  by  attorney  at  law,  430. 
ATTACHMENT, 

jurisdiction  in,  126. 

judgment  procured  by,  573. 
ATTACK,  COLLATERAL.     See  Estoppel,  Impeachmekt,  Judgments  by 

Default,  Jueisdiction. 
ATTORNEY  AT  LAW, 

authority  of,  presumed,  128. 


G22  INDEX. 

ATTORNEY  AT  LAW— Contiotjed. 

appearance  in  absence  of  authority  as  ground  for  vacation  of  judg- 
ment, 98. 

appearance  in  absence  of  authority  as  ground  for  relief,  iOU,  500,  503. 

appearance  in  absence  of  authority  as  ground  for  relief  against  pur- 
chasers, 509,  510. 

appearance  whether  authority  to  may  be  questioned  on  judgment  from 
another  State,  5G3. 

lien  for  fees,  notice  of,  211. 

neglect  of,  considered  as  neglect  of  client,  112. 

payment  of  judgment  to,  402,  4G3. 

neglect  of,  no  ground  for  relief,  500. 

power  to  compromise,  463. 

purchase  at  execution  sale,  how  affected  by  reversal,  484. 
AUDITA  QUERELA,  95. 
AUTHENTICATION, 

of  judgments  of  sister  states,  411,  412,  413. 

of  foreign  judgments,  414. 

B. 

BAILOR  AND  BAILEE, 

privity  of,  IGG,  183. 
BANKRUPTCY  PROCEEDINGS, 

impeaching  judgment  in,  337a. 

modification  of  law  of  merger  in,  245. 

preventing  defense  of,  bj'  fraud,  489. 
BILL  DISMISSED, 

when  a  bir  to  further  action,  270. 
BILL  OF  REVIEW, 

barred  by  former  bill,  323. 
BLANKS  IN  JUDGMENT, 

filled  in  by  clerk,  49. 

c. 

CANADA, 

effect  of  foreign  judgment,  596,  note. 

no  action  on  judgment  of  division  court,  432, 
CAPIATUR, 

judgment  of,  8. 
CAUSE  OF  ACTION, 

fraud  in,  no  ground  for  relief  in  equity,  489. 

unconstitutional,  no  ground  for  relief  in  equity,  487. 
CERTIFICATE, 

to  authenticate  judgment  of  a  sister  State,  412. 
CLAIM, 

allowed  by  court  is  merged,  as  by  judgment,  222- 
CLASSIFICATION,  ^ 

common  to  judgments-and  decrees,  12. 

of  grounds  of  relief  in  equity,  488. 

of  judgments,  5,  6, 


INDEX.  623 

CLEEK  OF  COURT, 

acts  ministericilly,  533. 

act,  if  iinanthorized,  is  void,  129,  533. 

act,  if  erroneous  merely,  is  valid,  129,  534. 

may  act  tbougli  the  judge  is  disqualified,  535. 
CLEEICAL  EEEOES. 

correction  of,  71. 
COIN  JUDGMENT, 

power  of  courts  to  enter,  3. 
CO-DEFENDANTS, 

rights  between  one  another  not  settled  by  judgment,  227. 

right  of  one  to  subrogation  on  paying  entire  judgment,  472. 
COLLATEEAL  ATTACK.     See  Estoppel,  Impeaching,  Jueisdiction,  Jurxi- 

MENTS  BY  Default. 
COLLATEEAL  SECUEITY, 

not  merged  by  judgment  on  the  principal  debt,  229. 
COLLUSION, 

avoids  estopi^el,  250. 

as  ground  for  impeaching,  334,  435. 

See  Feaub. 
COLUMBIA,  DISTEICT  OF, 

judgment  in,  treated  as  foreign,  604a. 
COMMENCEMENT, 

oi  Us  joendens,  191,  195. 
COMMON  EECOVEEY, 

effect  of  judgment  in,  294. 
COMPLAINT, 

presumed,  that  written  one  is  required  in  all  conntries,  603, 
CONCEALMENT, 

when  ground  for  relief,  491,  493. 
CONDEMNATION, 

judgment  of,  as  a  merger  of  causes  of  action,  222. 
CONFEDERATE  NOTES, 

payment  of  judgment  by,  463. 
CONFEDEEATE  STATES, 

judgments  rendered  in,  004. 
CONFESSION  OF  JUDGMENT  WITHOUT  ACTION, 

acceptance  by  plaintiff  essential  to,  548. 

appeal  from,  558. 

causes  of  action  on  which  it  may  be  based,  546. 

jurisdiction  of  the  court,  essential  as  in  other  cases,  547. 

must  be  signed,  like  other  judgments,  547. 

persons  who  may  make  the  confession,  545> 

remedies  to  correct  errors  in,  558. 

service  of  process  in,  544. 

statement  in,  when  required,  544. 

statement  in,  requisites  of,  549,  552. 

statement  in,  signing,  551. 
statement  in,  verification,  550. 
■  statement  in,  for  balance  due,  556. 
statement  in,  for  goods  sold,  554. 

statement  in,  for  money  lent,  555. 


G24  INDEX. 

CONFESSION  OF  JUDGMENT  WITHOUT  ACTION— Continced. 

statement  in,  on  promissorj-  note,  553. 

statement  in,  effect  of,  insufficient,  557. 

statutes  in  regard  to,  strictly  construed,  54.3, 
CONSTr.UCTIYE  SERVICE  OF  PROCESS, 

jurisdictional  inquiries  in  judgments  procured  by,  127. 

fraud  in  employing,  a  ground  for  relief,  489. 

in  divorce  suits,  583,  584. 

on  residents,  570. 

on  residents  of  other  States,  507. 

on  corporations  of  other  States,  5G8. 

on  residents  in  foreign  countries,  588,  589. 
CONSTRUCTION, 

of  judgment  entries,  45. 
CONTINUANCES, 

defined,  77. 
CONTEMPT, 

judgment  for,  137. 
CONTRACT, 

i.-i  a  judgment  in  the  nature  of  ?  4. 
CONVICTION, 

when  a  bar  to  further  prosecution,  318. 
CO-OWNERS, 

privity  between,  171a. 
COPY  OF  RECORD, 

as  proof  of  judgment,  407,  408. 
CO-PLAINTIFFS, 

rights  between  one  another  not  settled  by  judgment,  227,  230. 
CORPORATION, 

constructive  service  of  process  on,  5C8. 

judgment  against,  whether  binds  stockholders.  177. 

judgment  against,  whether  merges  claim  against  stockholders,  228. 
CORRECTING  JUDGMENT,  G!),  70. 
COSTS, 

on  motion  to  open  judgment,  109. 

judgment  for  may  be  given  on  dismissing  aj^peal  for  want  of  jurisdic- 
tion, 121. 

■whether  judgment  for  is  final,  IG. 

when  takes  precedence  over  judgment  lien,  338. 

when  paid  out  of  proceeds  of  lien,  338. 
CO-TENxiNT, 

lien  of  judgment  against,  3j7a. 

privity  between,  171a. 
COUNTY, 

adjudication  against,  binds  its  citizens,  178. 

effect  of  judgment  against,  432a. 
COURTS  OF  RECORD, 

what  are,  122. 

when  treated  like  inferior  couits,  123. 
COURTS  NOT  OF  RECORD, 

distinction  between,  and  courts  of  record,  122,  517. 

jurisdiction  must  be  shown,  517,  525. 


INDEX.  625 

COUETS  NOT  OF  EECORD— Continued. 

jurisdiction  not  presumed,  517. 

jurisdiction  may  be  disproved,  517. 

jurisdiction,  whether  it  may  be  proved  aliunde,  5lS. 

jurisdiction  not  proved  by  docket  entries,  519. 

justice's  courts  generally  not  courts  of  record,  520, 

process,  service  of,  must  be  shown,  521. 

judgment  prematurely  entered,  521. 

judgment  entered  in  other  States,  577. 

■when  process  is  authorized  upon  certain  facts,  52''!,  523. 

judgments  in,  conclusive  if  they  have  jurisdiction,  Z2-i. 

adjournment,  without  day,  526,- 

publication,  service  by,  527. 

proceedings  against  defendants  under  common  name,  528. 

protection  of  officers  acting  under,  529,  530,  531. 

what  tribunal  and  persons  act  as  courts  not  of  record,  531. 

proof  of  judgments  of,  410. 
COUKTS  OP  THE  UNITED  STATES, 

judgments  of,  treated  like  judgments  of  another  State,  578. 
COVENANTS, 

each  can  give  but  one  cause  of  action,  240. 
CEEDITOES, 

no  privity  between,  159. 

privity  with  administrator,  163. 
CEIMINAL  TEOSECUTION, 

acquittal,  as  a  bar,  318. 

as  merger  of  civil  liability,  225. 

nolle prosequiin,  318. 

judgment  in,  not  evidence  in  ci-sil  cases,  319, 
CEOSS-CLAIM. 

what  is,  282. 

need  not  be  presented  l)y  defendant,  282. 

D. 

DAMAGES, 

all,  must  be  recovered  in  one  judgment,  241. 
DATE  OF  JUDGMENT, 

presumption  in  regard  to,  45. 
DATA, 

for  amending  entry,  72. 

for  nunc  pro  tunc  entry,  61,  62,  63. 
DECEASED  PEESON, 

entry  of  judgment  against,  nwic  pro  tunc,  57-GO. 

judgment  maybe  entered  against,  when,  57,  58,  139, 

judgment  against  not  void,  140,  153. 

judgment  against  lien  of,  369. 
DECREE, 

actions  on,  434. 

amending,  70. 

delined,  9. 

enrollment  not  essential,  39. 

40 


G2G  INDEX. 

DECREE— Continued. 
estoppel  of,  248. 
final,  what  is,  22-36. 
nisi,  what  is,  10. 
pro  confesso,  11. 
of  bill  dismissed,  is  a  bar,  270. 
vacating,  100. 
DEED, 

whether  necessary  in  partition,  308. 
DEFAULT,  JUDGMENT  ON, 
appeal  from,  537-540. 
discretion  of  court  iu  vacating,  541. 
disqualified  judge  may  enter,  535. 
effect  of,  330,  331,  532. 
entry  of,  by  clerk,  129,  533. 
error  of  clerk  iu  entering,  129,  534. 
vacation  of,  541. 

See  Vacation  of  Jttdgments. 
vacation  of  merits  essential  to,  541. 
vacation  of,  to  allow  meritorious  defenses,  542. 
DEFECTS, 

in  acquiring  jurisdiction,  126. 
DEFENDANTS, 

if  ninnerous,  partmay  represent  all,  157,  173. 
DEFENSES, 

distinction  between,  and  cross-claim,  282. 

effect  of  general  judgment  when  there  are  permanent  and  temporary, 

258,  276. 
equitable,  when  not  barred,  281. 
rejected,  279,  n. 
to  action  on  judgment,  435. 
to  action  on  judgment,  sister  State,  576. 
to  action  on  judgment,  how  plead,  458. 
DEFINITION  AND  DESCRIPTION, 
of  audita  querela,  writ  of,  95. 
of  continuances,  77. 

of  coram  ivMs  and  coram  vohis,  writ  of,  94. 

of  courts  of  record,  and  not  of  record,  122, 

of  decrees  of  various  kinds,  9,  10,  11. 

of  diligence,  503. 

of  docket,  doquet  or  dogget,  343. 

of  entering  judgment,  77. 

of  estoppel,  24G. 

of  facts  in  issue,  257. 

of  final  judgments  and  decrees,  lG-36. 

of  judgments,  1,  2. 

of  judgments  of  different  kinds,  C-8. 

of  judgments  in  personam,  13,  COG^ 

of  judgments  i?i  rem,  13,  COG. 

of  judgments  under  the  code,  14. 

of  jurisdiction,  118,  and  note  to  same  page. 

of  lieu,  3JS. 


INDEX.  G27 

DEFINITION  AND  DESCRIPTION— Continued, 
of  orders,  15. 
of  parties,  181. 
otplacita,  77. 
oiposteu,  77. 
of  privies,  162. 

of  prorogated  jurisdiction,  145. 
of  rdraxil,  7, 
of  scira  facias,  442. 
of  signing  judgment^  77. 
of  terre-tenant,  449. 
of  void  judgment,  116. 

DELAY  OF  COUNSEL, 

no  ground  for  nunc  pro  tunc  entry,  60. 

DELAY  OF  THE  COURT, 

as  ground  for  nunc  pro  tunc  entries,  57,  58. 

DELAY  OF  THE  PARTIES, 

bars  right  to  jutnc  j^fo  tunc  entry,  60. 

thougli  occasioned  by  adverse  party,  60. 

in  making  motion  to  vacate  judgment,  102. 
DEMAND, 

judgment  for  part  of,  extinguishes  the  whole,  238,  239. 
]:)EMURRER, 

judgment  on,  vehen  bar  to  future  suit,  267. 
DIES  NON, 

judgment  on,  void,  138. 
DILIGENCE, 

essential  to  relief,  503,  493. 

in  keeping  up  lis  pendens,  202. 

in  prosecuting  lien,  374. 
DISCOVERY, 

when  obtainable  after  judgment,  506,  507. 
DISCRETION, 

in  vacating  judgments,  subject  to  review,  106. 

DISMISSAL, 

is  a  fiual  judgment,  17. 

but  not  a  bar,  261. 

unless  entered  by  agreement,  262. 

decree  of,  is  a  bar,  270. 

DISQUALIFIED  JUDGE, 

acts  of,  144-48,  535. 
DISTINCTIONS, 

between  courts  of  record  and  not  of  record,  122. 

between  entry  of  judgment  and  entry  of  decree,  39. 

between  final  and  interlocutory  decree,  29,  36, 

between  a  judgment  and  a  decree,  9. 

between  a  judgment  iJirem,  ^wH  in  personam,  13. 

between  a  judgment  under  the  code  and  at  common  law,  14, 

between  a  judgment  and  an  order,  15, 

between  a  retraxit  and  a  nou-suit,  7. 

between  want  of  juritsdictiou  and  defect  of  jurisdiction,  126. 


623  INDEX. 

DIVOECE,  DECREE  OF, 

as  evidence  agaiust  third  persons,  159,  313,  586. 

is  rea judicata,  270,  313. 

effect  of  decree  in  another  State,  570-87. 
DOCKET, 

what  is,  343. 

correction  of,  314. 

of  judgment  of  appellate  court,  345. 

of  judgment  of  justice's  court,  346. 

spelling  of  names  in,  347. 
DOMICILE, 

defendant  bound  by  the  law  of  his,  570. 
DOWER, 

claim  of,  how  affected  by  foreclosure,  303. 

claim  of,  how  affected  by  partition,  304. 

claim  of,  how  affected  by  judgment  lien,  3Gla. 


E. 

EJECTMENT, 

at  common  law,  295. 

at  common  law  on  confession,  296. 

at  common  law  in  suit  for  mesne  profits,  297. 

at  common  law  costs  must  be  paid,  298. 

under  recent  statutes,  299-302. 

party  against  whom  it  must  be  brought,  162. 

parties  who  may  be  dispossessed  under,  171. 
ELECTION, 

to  interpose  equitable  defense,  501. 
END  OF  LIS  PENDENS,  206. 
ENROLLMENT   OF  DECREE,  39. 
ENTRY  OF  JUDGMENT, 

required  in  all  courts,  37. 

is  a  ministerial  act,  38. 

not  essential  to  judgment,  38. 

distinction  between,  and  decrees,  39. 

in  judgment  book,  40,  41. 

ought  not  to  be  delayed,  42. 

on  verdict,  42. 

against  joint  defendants,  43-4. 

construction  of  entry,  45,  54. 

against  third  persons,  treated  as  clerical  error,  45. 

form,  46,  47. 

under  the  code,  47. 

must  be  in  dollars  and  cents,  48. 

filling  blanks,  49. 

sufficiency  of,  50,  51,  52. 

in  justice's  courts,  53,  and  note  to  55. 

on  award,  55. 

See  Nunc  Pro  Tunc  Enteies. 
EQIHTY, 

estoppel,  recognized  in,  248. 


INDEX.  G29 

EQUITY— CONTINTTED.  , 

will  not  extend  or  limit  judgment  lieu,  395. 
will  not  extend  or  limit  foreign  judgment,  COO. 
EQUITABLE  INTERESTS, 

when  subject  to  judgment  lien,  34S,  357. 
EQUITABLE  DEFENSES, 

whether  must  be  made  at  law,  281. 
EREOE  OF  THE  COUBT, 

never  makes  judgment  void,  135. 

not  a  ground  for  nunc  pro  tunc  entry,  68. 

not  a  ground  for  relief  in  equity,  485,  487. 

not  a  ground  for  relief  on  motion  by  vacating  after  term,  101.. 

not  a  ground  for  avoiding  foreign  judgment,  595. 
ESTOPPEL, 

definition  of,  246. 

not  odious,  247. 

of  decrees,  248. 

general  extent,  249. 

requisites  of,  250-71. 

evidence  to  establish  or  to  rebut,  272-76. 

matters  which  defendant  need  not  litigate,  277-82. 

pleading  to  invoke,  283,  284. 

actions  in  conflict  with  judgment  not  allowed,  285-92. 

of  judgments  in  real  actions,  293-311. 

of  judgments  in  personal  actions,  312-17, 

of  admiralty  i^roceedings,  615. 

of  criminal  cases,  318,  319. 

of  motions  and  s^jecial  proceedings,  320-25. 

effect  of  appeal  on,  328. 

effect  of  reversal  on,  333. 

of  defaults  and  admissions,  330,  331. 

after  acquired  rights,  329. 

last  judgment  prevails,  332. 
EVIDENCE, 

for  amending  judgment  entry,  72. 

for  7mnc  pro  tunc  entry,  61-3. 

identity  of,  is  the  test  oi  res  judicata,  259. 

not  received  against  the  record,  275. 

to  show  what  is  res  judicata,  273. 

to  show  what  is  not  res  judicata,  272,  274,  302. 
EVIDENCE,  JUDGMENT  AS, 

to  prove  its  own  rendition,  416, 

to  prove  title,  416. 

as  matter  of  inducement,  417. 

to  prove  that  plaintiff  is  a  judgment  creditor,  418. 

to  prove  questions  of  public  nature,  419. 

See  Peoqf. 
EXECUTION  SALE, 

purchaser  at,  bound  by  lis  pendens,  208. 
EXECUTOR  AND  A.DMINISTEATOE, 
■  privity  of,  1G3. 


G30  INDEX. 

EXCUSABLE  NEGEECT, 
what  is,  114,  115. 

F. 

FEDERAL  COURTS, 

judgments  of,  entitled  to  full  faith  and  credit,  578. 
judgment  lien  of,  406. 
FIGURES, 

entry  of  judgment  in,  48a. 
FINAL  DECREE, 

what  is,  29. 
FINAL  JUDGMENT, 

essential  to  res  judicata,  251. 

essential  to  lien,  340. 

what  is,  12,  17-28. 

general  test  of,  36. 
FINDINGS, 

immaterial,  no  estoppel,  271. 

of  jurisdictional  facts,  130. 

of  jurisdictional  facts  in  judgments  of  other  States,  5G0-C3. 
FORECLOSURE, 

decree  of,  as  res  judicata,  303. 

decree  of,  as  lien,  398. 
FOREIGN  JUDGMENTS, 

against  temporary  i-esidents,  588. 

are  not  records,  605. 

authentication  of,  414. 

effect,  when  against  policy  of  our  laws,  588. 

pleading,  453. 

not  a  merger  of  cause  of  action,  220,  605. 

jurisdictional  inquiries  permitted,  583,  595. 

against  non-resident,  588,  589. 

against  non-resident  corporations,  590. 

distinction  between,  as  causes  of  action  and  as  pleas  in  bar,  592,  594. 

distinction  between  decree  denying  and  granting  relief,  593. 

fraud  avoids,  591,  595. 

in  acquiring  jurisdiction,  566. 

not  examinable  on  the  merits,  594. 

not  examinable  for  error  of  law,  595. 

American  cases  in  regard  to,  596. 

effect  against  indemnitor,  597. 

foreign  decree  conclusive,  598. 

decree  discharging  insolvent,  599. 

equity  will  not  restrain,  600. 

rendered  by  interested  tribunal,  601, 

not  affected  by  pending  appeal,  602. 

must  be  supported  by  a  complaint,  603. 

Southern  Confederacy  and  District  of  Columbia,  judgments  in,  604, 
G04«. 

of  probate  courts,  605a. 
FORM  OF  ENTRY, 

of  judgments,  46,  47,  50,  51,  52,  note  to  §  55. 


INDEX.  631 

FOEM  OF  ENTRY— Continued. 

of  decree  of  foreclosure,  47. 
FRACTIONS  OF  A  DAY, 

■when  regarded,  370. 
FRAUD, 

prevents  merger,  223. 

avoids  estoppel,  250. 

in  getting  defendant  within  jurisdiction  of  court,  56G. 

avoids  foreign  judgment,  591,  595. 

whether  a  ground  for  impeaching  judgment,  132,  336. 

is  a  g'i-ound  for  relief  in  equity,  486,  480,  490,  491. 

as  a  ground  for  vacating  judgment,  99. 

as  a  defense  to  judgment  of  sister  State,  576. 
FUTURE  ADVANCES, 

lien  of  judgment  for,  397. 

G. 

GAMBLING  DEBT, 

relief  from  judgment  based  on,  502. 
GARNISHEE, 

judgment  against,  no  merger  of  demand  against  the  principal,  228, 

protected  by  the  orders  of  the  court,  167 . 

no  privity  with  the  creditors,  167. 

no  privity  with  his  principal,  167. 
GENERAL  EXPRESSIONS, 

confined  to  the  parties,  155,  and  the  issues,  158,  271. 
GENERAL  ISSUE, 

effect  of  judgment  put  in  evidence  under,  284. 

in  actions  on  judgments,  458. 
GENERAL  VERDICT, 

where  there  are  both  permanent  and  temporary  defenses,  268. 
GOLD  COIN, 

whether  judgment  may  be  for,  3. 
GRANTOR  AND  GRANTEE, 

privity  of,  165,  186. 
GUARANTOR, 

when  bound  by  judgment  against  guarantee,  187. 

H. 

HABEAS  CORPUS, 

whether  decision  on  is  res  judicata,  324. 
HASTE  OF  COURT, 

no  ground  for  relief,  487. 
HEIR  AND  ANCESTOR, 

privity  of,  107. 
HEIR  AND  ADMINISTRATOR, 

privity  of,  163. 
HOMESTEAD, 

disposed  of  by  foreclosure,  303. 

judgment  lien  against,  355. 


632  DJDEX. 

I. 

IGXOrLANCE, 

of  defense  as  a  ground  foi*-  relief  in  equity,  506. 

of  evidence  as  u  ground  for  relief  iu  equity,  507, 
IMMATERIAL  FINDING, 

create  no  estoppel,  271. 
IMPEACHING  JUDGMENTS,  285,  28G,  33-i-7. 

for  fraud  on  bankrupt  acts,  337a . 
INADMISSABLE  CLAIMS, 

not  barred  by  judgment,  2C9. 
INADVERTENCE  AND  INATTENTION, 

not  a  ground  for  relief,  485,  487. 
INDEMNITORS, 

when  bound  by  judgment  against  person  indemnified,  181,  184. 

when  bound  by  foreign  judgment,  597. 
INDICTMENT, 

lost,  cannot  be  replaced,  89,  note. 
INDIVISIBLE  DEMANDS,  238-42. 
INDORSER, 

effect  of  payment  of  judgment  by,  471. 
INEXCUSABLE  NEGLECT, 

what  is,  115 . 
INFANTS, 

are  bound  by  judgments,  151,  513. 

when  may  move  to  vacate,  102^ 

whrn  may  obtain  relief,  513. 
INFERIOR  COURTS.     See  Couets  not  of  Recoed. 

proof  of  judgments  of,  410. 
INJUNCTION  SUIT, 

lis  pendens  of,  195. 
INNOCENT  PURCHASER, 

relief  cannot  be  had  against,  510,  513. 

not  affected  by  nunc  pro  tunc  entries,  GG. 

not  affected  by  amendments,  74,  344. 

not  affected  by  reversal,  484. 

not  affected  by  secret  vices,  509. 
INSANE  PERSON, 

bound  by  judgment,  152. 
INTEREST  ON  JUDGMENT, 

none  at  common  law,  441. 

is  secured  by  the  lien  of  the  judgment,  341- 
INTERLOCUTORY  JUDGMENT, 

what  is,  12,  14,  15, 

decree,  what  is,  29,  31. 

is  part  of  judgment  roll,  84. 

is  not  res  judicata,  251. 

is  called,  by  the  code,  an  order,  14. 

no  lieu  arises  from,  310. 
IRREGULARITY, 

is  a  gvotind  for  vacation,  97. 

but  not  for  relief,  487. 


INDEX.  "^'^ 


)oo 


IREEGULAEITY— Continued. 

waiver  of,  102. 
ISSUES, 

identity  of,  256. 

judgment  without,  135a. 

res  judicata  confined  to,  257. 

what  become  res  judicata,  259. 

whether  can  be  shown  not  to  be  res  judicata,  272. 

J. 

JOINT  DEBTOR  ACTS. 

judgment  under,  as  a  merger,  219,  233. 

judgment  under,  no  effect  out  of  the  State,  574. 
JOINT  DEFENDANTS, 

entry  of  judgment  against,  43,  44. 

judgment  void  as  to  one,  void  as  to  all,  13G. 
JOINT  OBLIGOES, 

judgment  against  one,  releases  all,  231. 

unless  the  obligation  is  several,  as  well  as  joint,  235. 

or  they  reside  in  different  States,  234. 
JUDGE, 

de  facto,  148. 

disqualified,  144-46. 

may  enter  judgment  against  himself,  146. 

which  may  authenticate  judgment  of  jinother  State,  413. 
JUDGMENT, 

different  kinds  of,  1-15. 

in  figures,  4Sa. 

is  a  merger  of  another  action  for  same  cause,  249. 

is  a  merger  of  prior  equities,  217, 

is  a  merger  of  judgment  on  which  it  is  recovered,  216. 

is  a  new  debt,  217. 

signing,  77. 

void,  when,  117,  264. 
JUDGMENTS  IN  BEM. 

definition  of,  606. 

different  kinds  of,  607-10. 

in  probate  courts,  COS. 

in  decreeing  sale,  600 . 

in  decrees  concerning  marital  relations,  610. 

junsdictional  inquiries  in  regard,  611. 

causes  for  avoiding,  612. 

in  admiralty  courts,  613-18. 
JUDGMENTS  IN  OTHER  STATES, 

is  a  merger  of  cause  of  action,  221. 

constitutional  and  legislative  provisions,  559. 

faith  and  credit  of,  559,  575,  576. 

jurisdictional  inquiries,  560-64, 

jurisdictional  inquiries,  cases  holding  that  they  are  open,  562. 
jurisdictional  inquiries,  cases  holding  that  they  are  not  open,  561. 
jurisdictional  inquiries  against  record  recitals,  563,  580. 


634  IXDEX. 

JUDGMENTS  IN  OTHER  STATES— Contimjed. 

against  non-residents,  5G4,  5GG. 

against  non-residents  under  joint  debtor  acts,  574. 

ag:dust  rtalty  iu  another  State,  5G4. 

against  non-resident  coming  within  State,  5G5. 

against  non-resident  corporations,  567. 

presumption  of  jurisdiction,  5C5. 

constructive  service  of  process,  567-70. 

law  applicable  to,  571. 

must  be  shown  to  be  valid  where  rendered,  571 . 

jurisdiction  of  subject  matter,  572. 

obtained  by  attachment,  573. 

obtained  by  joint  debtor  acts,  574.. 

defenses  to,  576. 

of  courts  not  of  record,  577. 

of  Federal  courts,  578. 

of  decrees  of  divorce,  579-87. 
JUDGMENT  BOOK, 

■when  entry  may  be  made  in,  40, 

use  of,  improper,  41. 

as  iiroof  of  judgment,  409. 
JUDGMENT  ROLL, 

origin  of,  75. 

vezdty  of,  76. 

of  what  composed  at  common  law,  78,  79. 

of  what  composed  under  statutes,  80,  81. 

of  what  composed  in  California  and  Nevada^  82,  83,  84. 

on  new  trial,  85. 

States  having  none,  86. 

effect  of  failure  to  make  up,  87. 

in  equity,  88 . 

restoring,  when  lost,  89. 

restoring,  chancery  has  no  power  over,  89a, 

silence  of,  as  to  jurisdiction,  132. 

whether  jurisdictional  inquiries  are-conlined  to,  124,  131,  133, 
JUDICIAL  ACTS, 

what  are,  531. 
JUNIOR  JUDGMENT, 

sale  under,  377. 
JURISDICTION, 

acquii'ed  by  fraud,  566. 

attachment,  procured  by,  126. 

attorney,  appearance  by,  128,  499,  500. 

consent  cannot  confer,  120. 

constructive  service  of  process,  127. 

continues  after  service  till  judgment,  142, 

defaulf,  129. 

deftcts  ia  obtaining,  126 . 

definition  of,  118. 

inquiries  in  regard  to,  what  allowable,  116,  122,  123,  131-34, 

error  does  not  affect,  135. 

essential  to  judgment  by  confession,  547. 


INDEX.  635 

JUEISDTCTION— CoNTiNtTED. 

findings  of,  130. 

for  one  purpose  only,  143. 

loss  of,  121,  526. 

over  deceased  defendant,  139,  14.0,  153,  157,  158. 

over  party  not  named,  141 . 

over  subject  matter,  120. 

on  Sunday,  138. 

pleading,  452. 

presumptions  of,  124,  125,  132, 

presumptions,  none  in  courts  not  of  record,  517 . 

sources  of,  119,  126. 

to  enter  judgment  for  contempt  of  court,  137 . 

to  enter  judgment  for  costs,  129. 

to  enter  judgment  nunc  pro  tunc,  when  lost,  65. 

to  enter  judgment  without  an  issue,  135a. 

tax  cases,  130,  135 

want  of,  ground  for  relief,  495 . 

want  of,  ground  for  vacation,  98 . 

want  of,  effect  of,  116,  264,  265,  525. 

where  judge  is  disqualified,  144,  145. 

where  based  on  facts  to  precede  issue  of  process,  522-23. 

wliether  may  be  shown  aliunde  in  justice's  court,  518. 
JUSTICE'S  COURTS, 

entry  of  judgment  in,  53,  and  note  to  $  55. 

lien  of  judgments,  346. 

sometimes  treated  as  courts  of  record,  122,  520, 

failure  to  enter  judgment  on  verdict,  53a. 
JUSTIFICATION, 

of  officers,  ministerial  and  judicial,  529-31, 


LACHES, 

in  applying  for  vacation,  102. 
LANDLOED, 

when  bound  by  judgment  against  tenant,  185. 
LANGUAGE  OF  JUDGMENT,  2,  46,  5L 

confined  to  the  issues,  158,  281. 

confined  to  the  parties,  155. 
LAST  JUDGMENT, 

prevails  as  an  estoppel,  332. 
LESSOR  AND  LESSEE, 

pri^^ty  of,  169,  185. 
LEVY, 

on  lands  as  satisfaction  of  judgment,  474. 

on  personality  as  satisfaction  of  judgment,  475, 
LIEN  OF  JUDGMENTS,  • 

nature  of,  338-42. 

holder  cannot  sue  for  waste,  338. 

attaches  to  all  of  defendant's  interests,  338. 

is  subordinate  to  the  costs  of  suit  and  sale,  338. 


636  INDEX. 

* 

LIEN  OF  JUDGMENTS— Continued. 

how  created,  339. 

arises  from  final  judgment  only,  340. 

includes  interest,  341. 

is  not  subject  to  control  by  the  court,  312. 

docketing,  313. 

docketing,  correcting,  344. 

docketing,  judgment  of  appellate  court,  345. 

docketing,  justice's  judgment,  346. 

docketing,  spelling  of  names,  347. 

estates  and  interests  affected  by,  348-GS. 

equitable  interests,  348. 

equity  of  redemption,  349. 

lands  fraudulently  conveyed,  350. 

fixtures,  351. 

rents,  352. 

term  of  years,  353. 

lands  not  in  possession,  354. 

lands  exempt  from  execution,  355. 

lands  of  cotenancy,  Sola. 

affects  only  debtor's  actual  interest,  356-57. 

against  trustees  and  administrators,  358. 

against  lands  intended  to  be  conveyed,  059. 

against  lauds  subject  to  vendor's  lieu,  360. 

against  lands  of  wife,  361. 

against  dower  interests  of  wife,  361a. 

against  lands,  interests  of  vendor  and  vendee  in,  333. 

of  judgment  for  purchase  money,  365. 

against  lands  conveyed  by  unrecorded  deeds,  366. 

after  acquired  title,  367-68. 

priority  of,  369-78. 

See  Peioeity  of  Judgment  Liens. 

suspension  and  discharge  of,  379-91. 

See  SuspKNsioN  and  Dischaege  of  Judgment  Liens, 

extending  and  reviving,  392-96. 

for  future  advances,  397. 

of  foreclosure  decrees,  398,  402. 

of  Federal.courts,  403-06 . 

See  Analysis  on  page  298. 
LIS  PENDENS, 

amended  pleadings,  199. 

between  what  jjarties,  200. 

commencement  of,  195. 

confined  to  State,  210, 

diligence  required,  202. 

dismissal,  without  prejudice,  204» 

ejectment,  213. 

effect  of,  193,  198,  208. 

end  of,  2u6. 

paramount  title  not  subject  to,  201. 

persons  bound  by,  201,  209. 

purchaser  at  execution  sale  bound  by,  208. 


INDEX.  637 


LIS  P^iVZ>J?2ViSf— Continued. 

property  bound  by,  194. 

reasons  for,  191. 

requisites  of,  196,  197, 

revivor  of,  203. 

termination  of,  206. 

when  may  be  filed,  212,  214. 
LOST  EECORD, 

action  on,  432&. 

how  proved,  407. 

how  replaced,  89,  89a. 

indictment  cannot  be  replaced,  89,  note. 
LUNATIC, 

bound  bj'  judgment,  152. 


M. 


MAEEIED  WOMAN, 

whether  bound  by  judgment,  150. 
MASTEE  AND  SEEVANT, 

privity  of,  179. 
MAXIMS, 

adits  curie  nem'mem  gravabit,  56. 

expedit  repubUca  ut  nit  finis  litium,  284. 

res  inter  alios  acta,  aliis  nee  prodest,  nee  nocd,  154. 

res  inter  alios  aela  alierl  nocere  nan  debet,  154. 
MEEGEE, 

application  of  doctrine  of,  to  bankruptcy  proceedings,  245. 

general  principles  of,  215. 

includes  all  causes  of  action,  216. 

judgment  is  a  new  debt,  217. 

depends  on  valid  judgment,  218. 

on  judgments  of  no  extra-territorial  effect,  219. 

of  foreign  judgments,  220. 

of  sister  State  judgments,  221. 

penditc  lite,  224. 

of  civil  liabilit}'  in  criminal  prosecution,  225. 

of  relation  of  principal  and  surety,  226. 

co-plaintiflfs  and  co-defendants,  227. 

of  collateral  security,  229. 

of  joint  obligations,  231-35. 

under  joint  debtor  acts,  233-34. 

of  joint  and  several  obligations,  235. 

of  claims  for  torts,  233,  237. 

of  indivisable  demands,  238-43. 

of  indivlriiblo  demands,  ex  contractu,  233-39. 

of  actions  on  account,  239. 

of  indivisible  demands,  ex  delicto,  241. 

of  actions  for  nuisances,  242. 

of  actions  for  sej^arate  torts,  243. 

of  excex^tions  to  general  law  of  merger,  244,  245. 


G'^S 


INDEX. 


MERITS, 

affidavit  of,  108. 

indispensiblo  to  vacation  of  judgment,  102. 

indispensible  to  relief  from  judgment,  498. 

judgment  on,  what  is,  2G0,  2G7. 

judgment  on,  essential  to  res  judicata,  260,  267,  318. 

judgment  on,  classification  of,  263. 
MESNE  PROFITS, 

action  for,  judgment  in  ejectment  as  evidence  in,  297,  301. 
MISCONCEIVED  ACTIONS, 

cannot  bar  proper  action,  265. 
MISEIilCORDlA, 

judgment  of,  8. 
MISNOMER  OF  PARTIES, 

does  not  relieve  them  from  judgment,  154. 
MISPRISIONS  OF  CLERKS, 

may  be  corrected,  71 . 

mistae:e, 

as  ground  for  relief  in  equity,  500a. 

as  ground  for  vacation,  113. 

as  ground  for  nunc  pro  tunc  entrj',  60. 
MONEY, 

power  to  enter  judgment  in  particular  kind,  3. 

judgment  must  be  paid  m,  463. 
MORTGAGE, 

wLetber  lien  of,  merges  in  judgment,  398. 
MOTION, 

bow  far  decision  of,  is  res  judicata,  255,  325,  326,  511 
MUTUALITY, 

essential  to  estoppels,  159. 

N. 

NAMES, 

incorrect  in  judgment,  154. 

omitted  in  judgment,  154. 

identity  of,  154,  347. 

docketing  of,  347. 

inserting  by  amendment,  70. 
NEGOTIABLE  PAPER, 

Us  pendens  does  not  apply  to,  194, 
NEGLECT, 

bars  relief,  486,  502. 

of  attornej',  112, 

of  attorney,  no  ground  for  relief  in  equity,  500. 

what  excusable,  114. 
NEW  TRIAL, 

record  of,  85. 
XIIIIL  DICIT, 

judgment  of,  7. 
NOLLE  FUOSEQVI, 

judgment  of,  7. 

when  a  bar,  201,  318, 


INDEX.  639 

NOMINAL  DAMAGES, 

judgment  for,  is  an  estoppel,  311. 
NO^  OBSTANTE  VEREDICTO, 

judgment  of,  7.  , 

NON  PEGS, 

judgment  of,  7. 
not  a  bar,  261. 
NONSUIT, 

judgment  of,  7. 
not  res  judicata,  261. 
NON  SUM  INFORMATUS, 

judgment  of,  7. 
NOTE, 

judgment  recovered  by  one  indorser,  227a. 
NOTICE, 

that  judgment  lien  will  attach,  364. 
by  lis  pendens,  191,  108. 
of  application  to  amend  judgment,  72. 
of  application  for  nunc  pro  tunc  entry,  64. 
of  application  for  vacation  of  judgment,  103. 
.of  assignment,  426. 
to  defend  suits,  176,  181,  188,  189. 
■want  of  ground  for  relief,  495. 

See  Lis  Pendens. 
NUISANCE, 

only  one  suit  for  each,  242. 
NULLITY, 

will  be  vacated,  98. 
NUL  TIEL  RECORD, 

plea  of,  459. 
NUMEROUS  DEFENDANTS, 

need  not  all  be  named,  157,  173. 
NUNC  FRO  TUNC  ENTRIES, 

maxims  on  which  founded,  56. 

classification  of  grounds  for,  57. 

on  account  of  delay  of  court,  57. 

on  account  of  delay  occasioned  by  motions,  58. 

can  be  made  only  when  cause  was  ready  for  trial,  59. 

not  for  any  delay  except  that  of  the  court,  60. 

evidence  on  which  to  base,  61-3. 

notice  of  motion  for,  64. 

termination  of  jurisdiction  to  make,  65. 

effect  on  rights  of  third  i^ersons,  66. 

general  effect,  67. 

must  be  based  on  previous  act  of  the  court,  68, 


o. 


OFFICE  HOURS, 

instruments  filed  before,  371. 
OFFICER, 

of  corporation  may  confess  judgment,  545. 


/ 


040  DTOEX. 

OFI'ICER  -  CoxTixuED. 

Ijublic,  may  confess  judginentr545. 

payment  of  judgment  to,  402. 

pajTnent  of  jiulgment  by,  409. 

■what  acts  of,  are  judicial,  531. 

■when  justified  by  process,  529. 

privity  -with  successor,  170. 

receiving  payment  in  confederate  notes,  4G3. 
ONUS, 

of  proving  res  judicata,  276. 
ORDER, 

what  is,  15. 

res  judicata  of,  253,  325-27,  511. 
OYER  OF  INSTRUMENT, 

makes  it  part  of  record,  78. 

P. 

PARTIES  TO  JUDGMENTS, 

all  persons  may  be,  149. 

cotenants  as,  I71a. 

married  woman,.  150. 

infants,  151. 

iuuatics,  152. 

deceased  persons,  153. 

judgment  confined  to,  154,  155. 

bound  only  in  the  same  capacity,  156 

bound  only  when  adversary  parties,  158. 

bound,  though  not  named  in  record,  when  numerous,  157. 

bound  mutually  or  not  at  all,  159. 

second  action  with  less  parties  that  the  first,  IGO. 

second  action  with  more  parties  than  the  first,  IGl. 

privies.     See  rEiviTT. 

persons  not  in  esse,  172. 

persons  bound  not  parties,  174-90. 

who  may  obtain  relief  from  judgment,  512. 
judgment  for  want  of  proper,  no  bar,  2GG. 
PARTNER, 

cannot  confess  judgment  against  firm,  545. 
judgment  against  one  releases  others,  232. 
PARTisEKSHIP, 

■when  established  by  judgment,  315. 
PAYMENT  OF  JUDGMENT, 

when,  does  not  discharge  lien,  391. 
to  whom  may  be  made,  4G2. 
how  made,  463. 
presumption  of,  464,  465, 
effect  of,  466. 

right  of  payer  to  subrogation,  408-73. 
PARTITION, 

decreee  of,  as  res  judicata,  304. 

decree  of,  against  persons  not  in  esse,  306. 


INDEX. 


G41 


TAETITION— Continued. 

decree  of,  against  unknown  owner,  307. 

where  ai^plicant  was  not  in  possession,  305. 
PERJURY, 

as  defense  to  j\idgment,_^435. 

as  cause  of  action,  289. 
•  as  ground  for  relief,  503. 
PERSONAL  PROPERTY, 

what,  bound  by  lis  2:>endens,  194. 
PERSONS  BOUND  BY  JUDGMENT,  THOUGH  NOT  PARTIES,  171-90. 
PERSONS  NOT  IN  ESSE, 

how  bound  by  judgments,  172. 
PLACITA, 

what  is,  and  necessity  of,  77. 
PLEADING, 

may  explain  the  judgment,  45. 

where  judgment  is  part  of  claim  of  title,  283. 

judgment,  as  an  estoppel,  283,  284. 

judgment,  general  form,  430. 

judgment,  must  correspond  with  the  dignity  of  the  judgment,  451. 

judgment,  jurisdictional  averments,  452,  453,  454. 

judgment,  jurisdictional  denials,  455. 

judgment,  description,  456,  457. 

defenses  to  judgment,  458-GO. 

defenses  to  judgment  of  sister  State,  4G1. 
POSTEA, 

what  is,  77. 
PREMATURE  SUIT, 

no  bar,  268,  274. 
PRESUMPTIONS, 

of  jurisdiction,  124,  125,  132. 

of  jurisdiction,  judgments  of  other  States,  565. 

of  jurisdiction,  courts  not  of  record,  517. 

of  payment,  464,  465. 

oi  res  judicata,  275,  276. 
PRINCIPAL, 

privity  with  agent,  164. 

privity  with  garnishee,  167. 

privity  with  surety,  180. 
PRIORITY  OF  JUDGMENT  LIENS, 

judgments  of  same  term,  369. 

fractions  of  a  day,  370. 

office  hours,  371. 

judgment  on  day  of  sale,  372. 

simultaneous  acquisition  and  conveyance,  373. 

diligence  in  acquiring  priority,  374. 

superior  equity,  375. 

preferred  debts  due  United  States,  378. 

sale  under  junior  judgment,  377, 
PRIVILEGE, 

of  exemption  from  process  must  be  plead,  496. 
41 


042  INDEX. 

PRIVITY, 

detiuition  of,  1G2. 

of  admiuistrator  with  administrator,  1^3. 

of  administrator  with  administrator  in  another  State,  1G3. 

of  administrator  with  creditor,  1G3.         . 

of  administrator  with  heir  or  devisee,  1G3. 

of  ancestor  with  heir,  1G8. 

of  assignor  with  assignee,  ]Go. 

of  bailor  with  bailee,  1G6. 

of  cotenants,  171a. 

of  creditor  with  creditor,  1"j9. 

of  lessor  with  lessee,  169. 

of  officer  with  his  successor,  170. 

of  principal  with  agent,  IGl. 

of  principal  with  garnishee,  167. 

of  remaindermen  with  tenant,  172. 

of  occupants  with  defendant  in  ejectment,  171. 

PROBATE  DECREES  AND  ORDERS, 
effect  of,  319a,  608. 

PROCESS, 

constructive  service  of,  127,  527. 
defective  service  of,  12G. 
of  no  force  beyond  the  State,  5G4. 
service  must  be  shown  in  inferior  courts,  519-23, 
want  of  service,  ground  for  relief,  195. 
PROOF, 

identity  of,  is  the  test  of  res  judicata.  259. 
onus  of,  in  regard  to  res  judicata,  276. 
—  to  avoid  estoppel,  272. 

to  establish  estoppel,  273. 
of  vacation  of  judgment,  409. 

PROOF  OF  JUDGMENTS, 

by  the  rucord,  407. 

by  co^^y,  408. 

by  judgment  book,  409. 

of  inferior  courts,  410. 

of  courts  of  another  State,  411-13. 

of  foreign  courts,  414. 

See  Evidence. 

PROPERTY  BOUND  BY  US  PEXJJJ-JXS,  194. 

PROPERTY  HOLDER, 

bound  by  judgment  against  city,  17S,  181. 

PURCHASERS  UNDER  JUDGMENTS, 

after  satisfnction,  acquire  no  title,  480. 

effect  of  reversal  on,  483,  484. 

not  prejudiced  by  amendments,  71,  344. 

not  prejudiced  by  nunc  pro  tatic  entry.  Go. 

not  prejudiced  by  reversal,  484. 

not  prejudiced  by  secret  vices  in  the  proceedings,  509,  510. 

not  prejudiced  by  suit  to  set  aside  judgment,  509,  510. 

IDlaintiff,  is  not  i>urchaser  for  value,  OGGa. 


INDEX.  C43 

Q. 

QUIETING  TITLE, 

judgmeut  iu  action  to,  effect  of,  o09,  32'J. 
qUOD  COMPUTET, 

judgment  of,  8. 
QUOD  PABTITIO  FIAT, 

judgment  of,  8. 
QUOD  BECUPERET, 

judgment  of,  7. 

R. 

EEAL  ACTIONS, 

effect  of  judgment  in,  293. 
EEAL  ESTATE, 

title  not  bound  by  judgment  in  another  State,  561. 
EEASONS  OF  THE  COUET, 

are  not  a  part  of  the  judgment,  2. 
EECEIPT, 

finding  of,  as  gi'ound  for  relief,  504. 
EECOED,  OE  JUDGMENT  EOLL, 

evidence  outside  of,  to  show  what  was  litigated,  273,  275. 

as  jjroof  of  judgment,  407. 

copy  as  i^roof  of  judgment,  408. 

lost,  how  proved,  407 . 

lost,  how  replaced,  89. 

power  of  court  over,  G3. 

See  Judgment  Eoll. 
EELIEF  IN  EQUITY  FEOM  JUDGMENTS, 

classification  and  statement  of  grounds  of,  4S5-S8. 

irregularity  as  ground  for,  487. 

from  judgment  by  default,  4S7,  532. 

error  in  admitting  or  excluding  evid^^nce,  487. 

error  in  rendering  judgment  on  unconstitutional  cause,  4S7. 

for  collusion,  489. 

for  concealment,  490,  493. 

for  taking  judgment  contrary  to  agreement,  492. 

from  void  judgment,  497. 

for  neglect  of  attorney,  500,  50S, 

mistake  of  fact,  500a, 

accident,  500a. 

mistake  of  the  court,  500a,  50y. 

usury,  502. 

gambling  debt,  502. 

diligence  required,  503. 

cestui  que  trust,  505a. 

for  ignorance,  50G. 

after  motion  at  law,  511. 

complainant  must  do  equity,  516. 

concealment  a  ground  for,  491-93. 

defenses  which  must  be  presented  at  law,  501.  506. 

discovery,  507. 


611  INDEX. 

BELIEF  IN  EQUITY  FROM  JUDGMENTS- Continued. 
error  as  ground  for,  487. 

executor  and  administrator  whcu  relieved,  505. 
fraud  as  ground  fur,  4.^9-93. 
infants  applying  for,  513. 
injury  essential  to,  514. 
innocent  purchasers,  509,  510. 
merits  essential  to,  498. 
neglect,  a  bar  to,  502,  503,  508. 
receipt  foiind,  504. 
threats  in  procuring  judgment,  494. 
■unauthorized  appearance  by  attorney,  499. 
auauthorized  act  of  attorney,  ;'J00. 
•want  of  jurisdiction  is  a  ground  for,  495. 
■where  remedy  by  motion  exists,  497. 
EEMAINDEIl  MEN  AND  REYERSIOXEES, 

■when  bound,  though  not  parties,  172, 
RENDITION  OF  JUDGMENT, 

valid  -without  and  before  entry,  40. 
jRES  JUDICATA.     See  Estoppel,  Meeger,  Pap.tii;s,  Pp.r\iTr. 
RESPONDEAT  OUSTER, 

judgment  of,  7. 
RESTITUTION, 

against  whom  enforced  in  ejectment,  171. 
on  reversal  of  judgment,  482-84. 
RETRAXIT, 

defined,  7. 

judgment  on,  a  bar,  2C1,  2G2. 
REVERSAL  OF  JUDGMENT, 
effect  on  estoppel,  o33. 
general  effect  of,  481. 
reversal  of  reversal,  481. 
restitution  between  the  parties,  482. 
restitution  from  assignee  of  judgment,  483. 
action  to  recover  property,  48'2-80. 
restitution  from  defendant  lien  holder,  482, 
effect  on  third  persons,  484. 


S. 
SALE. 

after  expiration  of  judgment  lien,  394. 
after  satisfaction  of  ji'.dgment,  48U. 
SATISFACTION  OF  JUDGMENT, 
by  payment,  462-G7. 
by  payment  to  prochdn  ami,  4C2. 
by  taking  out  execution  against  co  tort  feaso;;  407. 
by  levy  on  lands,  474. 
by  levy  on  personalty,  475. 
by  discharge  of  defendant,  47G. 
by  sale,  478. 
by  vacation  of  judgment,  478, 


INDEX.  645 


SATISFACTION  OF  JUDGMENT— Coktinued. 

by  other  means,  479. 

by  release  imder  seal,  4G3. 

effect  of,  466. 

sale  after,  void,  480. 

action  against  assignee  for,  426a. 

See  Payment  and  Subkogation. 
SCIEE  FACIAS, 

definition  of,  442. 

is  not  a  new  suit,  444. 

judgment  in,  443. 

defenses  in,  445. 

pleadings  in,  446,  447. 

parties  bound  by,  448,  449. 
SET-OFF, 

defendant  need  not  present,  277,  280. 

when  deemed  joresented,  279 . 

not  allowed,  279. 

not  decided,  279. 

voluntary  allowance  of,  280. 

code  of  California,  277. 
SETTLEMENT  OF  PAUPEE, 

order  of,  as  res  judicata,  256. 
SIGNING  JUDGMENT,  77. 
STATE, 

lis  pendens  confined  to,  210. 

See  Judgment  op  othek  States. 
STATUTES, 

in  regard  to  judgment  roll,  80-2. 

in  regard  to  judgment  roll  construed,  81-3. 

in  regard  to  vacating  judgments,  103-15. 
STOCKS, 

lis  pendens  as  to,  194. 
STOCKHOLDEE, 

whether  bound  by  judgment  against  corporation,  177. 
SUBEOGATION, 

right  of  payer  of  judgment  to,  468-73. 

co-defendant,  272. 

co-defendant  and  third  person,  473, 

indorser,  471. 

officer,  469. 

stranger,  468. 

siarety,  470. 
SUMMONS,     See  Jukisdiction  and  Process. 
SUNDAY, 

judgment  rendered  on,  138. 
SUPPLEMENTAL  PLEADINGS, 

Us  pendens  of,  199. 
SUPPLEMENTAL  PEOCEEDINGS, 

decision  in,  is  conclusive,  325-27. 
BUEETY, 

when  bound  by  judgment  against  his  principal,  ISO. 


OIG  INDEX. 

SUKETY— Continued. 

paying  judgment  entitled  to  subrogation,  470. 

whether  rights  of,  merge  in  the  judgment,  1^26. 
SUSPENSIOX  OF  JUDGMENT  LIENS, 

by  ca.  sa.,  379. 

bj'  forthcoming  bond,  380. 

b}^  temporary  vacation,  381. 

by  stay  of  execution,  382 . 

by  dormant  execution,  383. 

by  act  of  defendant,  384. 

by  erecting  new  county,  385. 

by  sale  under  execution  in  Pennsylvania,  38G. 

by  merger  of  judgment,  388. 

T. 

TAX  JUDGMENTS,  130,  135. 
TENANTS  IN  COMMON, 

no  i^rivity  between,  171. 
TEEM  OF  COURT, 

adjournment  of,  121. 

continues  till  call  of  the  next,  90. 

judgment  is  final  after,  96. 

judgment  out  of,  void,  121. 

judgment  may  be  amended  during,  G!). 

judgment  may  not  be  amended  after,  70. 

power  of  courts  out  of,  121. 
TEHEE-  TE2\'ANTS, 

who  are,  449. 
THREATS, 

by  which  defense  was  prevented,  494. 
TITLE, 

paramount,  not  affected  by  lis  pendens,  201 . 

vesting  of,  by  judgment,  237. 
TORT, 

all  damages  for,  furnish  but  one  cause  of  action,  241, 
TORT  FEASORS, 

liability  of,  is  joint  and  several,  236. 

efi"ect  of  judgment  against  one  of,  236. 

effect  of  judgment  against,  as  transfer  of  title,  237. 
TRANSCRIPT  OF  JUDGMENT, 

as  a  lien,  396. 
TRANSFER, 

pendente  lite. 

See  Lis  Pkndkns. 

of  title  by  judgment,  237. 
TRESPASS, 

judgment  in  action  of,  as  res  judicata,  310,  311,  317. 
TRESPASSERS, 

liability  of,  is  joint  and  several,  236. 
TROVER  AND  TRESPASS, 

effect  of  judgment  in,  as  a  merger,  237. 


047 


INDEX. 

TRUSTEES, 

IDrivity  with,  cedid  que  trust,  173. 

lieu  of  judgment  against,  358. 

cannot  confess  judgment  to  bind  truat  estate,  545. 


U. 

UNKNOWN  OWNER, 

judgment  against,  in  partition,  who  may  be  bound  ly,  3u7. 
UNRECORDED  DEED, 

takes  in-ecedence  over  judgment  lien,  3G6. 
UNITED  STATES   COURTS, 

lien  of  judgment  in,  403. 
USURY, 

as  ground  for  relief  from  judgment,  502. 


V. 

VACATING  JUDGMENTS, 

effect  of,  1016. 

may  be  done  during  term  at  discretion,  90. 

who  may  apply  for,  91,  92. 

in  California,  93. 

by  writ  of  error  coram  nobis,  94. 

by  writ  of  audita  querela,  95. 

after  term,  9G. 

for  eiTor,  101. 

for  irregularity,  97,  98. 

for  fraud,  99. 

nullity,  98. 

for  unauthorized  appearance  of  attorney,  98. 

for  mistake,  98. 

merits  essential  to,  102,  108. 

laches  in  applying  for,  102. 

notice  of  motion,  103. 

by  entry  of  second  judgment,  104a. 

proof  of,  409. 

in  England,  100. 

in  Maryland,  100. 

in  Michigan,  100. 
VACATING, 

satisfaction  of  judgments,  478,  478(?. 
VACATION   OF  JUDGMENT   FOR  INxiDVERTENCE,  MISTAKE  AND 
EXCUSABLE  NEGLECT, 

statutes  in  regard  to,  105. 

discretion  of  court,  106. 

•who  may  apply  for,  107. 

affidavit  of  merits,  108. 

affidavit  of  merits,  by  whom  made,  108. 

fiffidavit  of  merits,  cannot  be  controverted,  109. 

costs  must  be  paid,  109. 

new  motion  as  continuation  of  old  one,  110. 


G18  INDEX. 

VACATION  OF  JUDGMENT  FOE  INADVERTENCE,  MISTAKE  AND 
EXCUSABLE  NEGLECT— Continued. 

lenience  of  courts  iu  New  York,  IIL 

neglect  of  attorney,  112. 

mistake,  113. 

excusable  neglect,  114. 
VAEIANCE, 

in  pleading  judgments,  457. 
VENDEE, 

of  pendente  lite  purchaser,  209. 

privity  with  vendor,  1G5,  186. 

lien  of  judgment  against,  3G3. 
VENDOR'S  LIEN, 

has  precedence  over  judgment  lion,  SCO. 

VEEDICT, 

entry  of  judgment  on,  42. 

no  bar  without  judgment,  252. 
VEEITY, 

of  judgment  roll,  76. 
VESTING  TITLE, 

by  judgment  against  wrong  doer,  237. 
VOID, 

in  part,  void  altogether,  138. 
VOID  JUDGMENT, 

defined,  116. 

effect,  117. 

whether  judgment  without  any  issue  is,  135a. 

when  judgment  for  contempt  is,  137. 

on  account  of  fraudulent  alteration,  148a. 

relief  from,  in  equity,  497. 

sv. 

WAEEANTOE, 

privity  with  warrantee,  187. 

notice  to  defend,  181. 
WAEEANTY, 

judgment  for  breach  of,  312. 
WITNESS, 

not  privy  to  judgment,  189. 
WEIT, 

of  audita  querela,  95. 

of  error  coram  nobis,  94. 

of  error  coram  vdbis,  94. 


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